FAISAL vs THE STATE

ABDUL HAMEED DOGAR, J.--- This jail petition is directed against judgment, dated 12-7-2005 by learned Single Judge of High Court of Sindh, Bench at Sukkur, whereby Criminal Appeal No,35 of 2004 filed by petitioner was dismissed, the conviction and sentence under section 302(b), P.P.C. To imprisonment for life with payment of Rs,20,000 as compensation to the legal heirs of deceased or in default to further suffer six months' R.I. With benefit of section 382-B, Cr.P.C. Awarded by the trial Court was maintained.

2. Briefly stated, facts leading to the filing of instant petition as narrated by complainant Muhammad Suhail (P.W.1) brother of deceased are that on 23-1-2000 he went to meet his brother Naeem who was residing in District Khanewal where he met with Ghulam Shabbir (P.W.2) who informed him that his brother and petitioner Faisal Sheikh were residing in Shop No,5 Husnain Company but he has not seen him. Then they went to the Shop No,5 and saw that shutter of the shop was closed. They opened the shutter and found the dead body of the deceased lying with Chhuri injuries on his person and two blood-stained Chhuris were also laying there. They received message on wireless from Muhammad Madni (P.W.3) that petitioner is present before him and has confessed the murder of deceased Naeem. On this complainant and P.Ws. Reached there and met with petitioner and Muhammad Madni (P.W.3). On enquiry from petitioner that why he had killed deceased, he replied that he had anger upon deceased as he used to insist him for sodomy.

Petitioner was taken to the police station and report was lodged.

3. After usual investigation, petitioner was sent up to face trial before the Court of Sessions Judge, Naushahro Feroze.

4. Prosecution in order to establish its case examined seven witnesses in all.

5. Dr. Bashir Ahmed (P.W.5) conducted autopsy of deceased Naeem and found following injuries on his person:--

(1) Incised wound measuring 15 c.m. x 5 c.m. Below the hyoid bone on the front of neck.

(2) Incised wound 5 c.m. x 1 c.m. Into muscle deep on the right cheek extending from right ear to the angle of mouth.

(3) Incised wound 2 c.m. x 1 c.m. x muscle deep parallel to injury No,2, two O.M. Above.

(4) Stab wound with sharp regular margins measuring 3 c.m. x 5 , c.m: on the right side of the chest, 2 c.m. Below the nipple.

(5) Incised wound 4 c.m. x 1 c.m. x muscle deep on the right upper arm lateral side.

6. Petitioner in his statement recorded under section 342, Cr.P.C. Denied the case of prosecution and pleaded false implication. He neither opted to record statement on oath as required under section 340(2), Cr.P.C. Nor led any evidence in his defence.

7. On the conclusion of trial petitioner was convicted and sentenced as stated above.

8. We have heard Mr. Ghulam Nabi Soomro, learned Advocate Supreme Court appearing on behalf of petitioner and Mr. Muhammad Sarwar Khan, learned Additional Advocate-General, Sindh at length and gone through the record and proceedings of the case in minute particulars.

9. Mr. Ghulam Nabi Soomro, learned counsel for the petitioner mainly contended that only piece of evidence against petitioner is extrajudicial confession said to have been made before Muhammad Madni (P W.3) as such both Courts below should not have believed the same to be true and voluntary and petitioner is entitled to the benefit of doubt.

10. Mr. Muhammad Sarwar Khan, learned Additional Advocate-General, Sindh vehemently controverted the above contentions and argued that both Courts has properly appraised the evidence and recorded concurrent findings of guilt against petitioner.

11. In this case fact that the petitioner and deceased Naeem resided together in Shop No,5 at Husnain Company is admitted and not disputed. The factum that petitioner has committed the murder of deceased Naeem by cutting his throat with Chhuri and immediately went to Muhammad Madni (P.W.3) admitted murder and narrated the incident to him and the manner in which he committed the murder is also proved. Extra-judicial confession of petitioner before Muhammad Madni (P.W.3) and subsequently, before complainant Muhammad Sohail (P.W.1) coupled with the fact that petitioner went to P.W.2 at such early hours viz. 4-00 a.m. Or 5-00 a.m.

Leaving his duty place without informing his officers, recovery of dead body from Shop No,5 the place of residence of petitioner and deceased, concealment of his bag at roof of bathroom of mosque and absence of evidence of alibi are pieces of evidence which stood established against petitioner in two Courts below. Learned counsel though argued at length but could not point out any illegality, misreading or non-reading of evidence in the concurrent findings of guilt recorded against the petitioner by the two Courts below. Accordingly, the petition being devoid of force is dismissed and leave to appeal refused.