SHER MUHAMMAD BALOCH vs THE STATE and another

ORDER

' RANA BHAGWANDAS, J.--- Petitioner is aggrieved by Sindh High Court judgment, dated 22-11-2006 acquitting respondent Nadeem Akbar of the charge of Qatl-i-Amd of deceased Khair Muhammad committed on or about 2-5-1997 at about 11-00 p.m. Statement of the petitioner was recorded by the Investigating Officer on the same day at 11-55 p.m. Under section 154, Cr.P.C.

2. Precisely stated the facts leading to this case appear to be that on the fateful day deceased Khair Muhammad was coming out of a Rickshaw when he was way laid by respondent Nadeem Akbar driving a motorcycle. It is alleged that both the parties scuffled with each other and in consequence thereof respondent fired from his licensed pistol at the deceased culminating in his unnatural death.

3. At the conclusion of the trial, trial Court convicted the respondent under section 302(b), P.P.C.

And sentenced him to life imprisonment and fine of Rs,1,00,000. R.I. For six months in lieu thereof but on appeal a Division Bench of the Sindh High Court, vide judgment impugned found the respondent not guilty of the charge and ordered his acquittal, hence this petition.

4. We have heard Mr. Muhammad Ilyas Khan, Advocate Supreme Court for the petitioner and gone through the impugned judgment as well as record.

5. It is inter alia, contended that the High Court did not appreciate the evidence of ocular witnesses namely, Imdad Hussain, P.W.2, Rashid P.W.3 and Moula Bux P.W.4, as well as strong and independent corroborative evidence furnished by Jan Muhammad. P.W.28 and Abdul Khaliq, P.W.29; that the pistol used in the commission of crime was licensed in the name of, the respondent which was recovered from the scene of the occurrence with empties; that the Police Officer who effected the recovery of crime weapon and motorcycle at the pointing of the respondent could not be examined by reason of his death before he could be called for his evidence; that belated examination of the ocular witnesses by the Investigating Officer would not be itself resulted in an order of acquittal as according to the witnesses they had accompanied the petitioner to the police station but their statements were not recorded by the Investigating Officer for mala fide reason.

Lastly it is urged that incriminating pieces of evidence were not confronted to the respondent in his examination under section 342, Cr.P.C. And the same being a mistake on the part of Court ought to have been rectified by remand of the case for it was well-settled that no person is to suffer for the mistake or error of the Court.

6. It has been held by this Court time and again that in heinous crimes leading to the loss of human life without any legal justification and brutal killing at the whims of unscrupulous criminals, evidence should be weighed with great care and caution and in such circumstances, Court should ignore the technicalities; rather examine the evidence in a dynamic and pedantic manner.

Reference may be made to State v. Farman Hussain PLD 1995 SC 1.

7. In view of glaring defects pointed out at the hearing of this petition, we feel that a fit case for the grant of leave to appeal is made out. We would, therefore, grant leave to appeal against the impugned judgment of the High Court to consider, inter alia, the above submission of learned counsel for petitioner.

8. Let non-bailable warrants of arrest be issued against the D respondent by the trial Court under intimation to Deputy Registrar (Judicial) of this Court.