MANZOOR AHMAD MALIK, J. After a regular trial, petitioner Abdul Khalique and co-accused Abdul Ghafoor were convicted by the trial court under section 302(b), P.P.C. and sentenced to imprisonment for life each. They were also directed to pay compensation of Rs.200,000/- each to the legal heirs of deceased Khalil Ahmad, in default whereof to undergo SI for one year. Benefit of section 382-B, Code of Criminal Procedure was extended to them.
Both the convicts filed joint criminal appeal before the learned High Court of Sindh Circuit Court, Hyderabad.
Through the impugned judgment, the learned appellate court partly allowed the appeal to the extent of co-accused Abdul Ghafoor and acquitted him of the charge by giving him the benefit of doubt. The criminal appeal to the extent of present petitioner was dismissed and his conviction and sentence were upheld. Hence, the instant criminal petition for leave to appeal.
2. Prosecution case against the petitione r and his co-accused is that on the fateful night and time, when Khalil Ahmad (deceased) along with other PWs was returning to his home after offering Travih prayer , the petitioner and his co-accused confronted him. Acquitted co-accused Ghafoor Soomro caught hold of Khalil Ahmad, whereas petitioner and absconding co-accused Ghulam Mustafa inflicted dagger blows on his head, stomach and backside.
3. After hearing the learned counsel for the petitioner and learned Additional Prosecutor General at length and perusal of available record with their assistance, it has been observed by us that though there is delay of about sixteen hours in lodging the FIR but the fact remains that it has come on record that complainant side had sent Muhammad Umer , cousin of deceased Khalil Ahmed, whose name was also given in the FIR, to P.S. Bulri Shah Karim for issuance of letter for medical treatment of injured Khalil Ahmad (deceased) from the hospital and in this respect a Rapat was recorded by the police at 11.30 p.m. on the day of occurrence and a letter was also issued with the signatures of ASI to the Medical Officer, District Hospital, Tando Muhammad Khan for conducting medical examination of Khalil Ahmad (deceased) and for issuance of medico-legal certific ate. Dr. Nizamuddin (PW6) who medically examined Khalil Ahmad in injured condition stated in his examination in chief that Khalil Ahmad was brought by his relatives on 18.07.2014, who informed him that their relative had gone to police station for obtaining the letter , whereupon he (PW6) started examination of Khalil Ahmad. He further stated that in the meantime the said relative brought the letter of police. The said letter has been exhibited as Ex.16/A. The doctor (PW6) further stated in his cross-examination that he referred Khalil Ahmad to LUMHS Hydera bad after giving him first aid at 11.05 p.m. on 18.07.2014. In this respect, referral letter has been exhibited as Exh.16/B. A glance at the postmortem examination report of Khalil Ahmad issued by Dr. Salahuddin (PW7), MLO at LUH Hyderabad reveals that Khalil Ahmad was admitted in the said hospital on 19.07.2014 and he expired there on 21.07.2014. In these circumstances, the delay in lodging the FIR has reasonably been explained by the prosecution. Even otherwise, the first priority of kith and kin of Khalil Ahmad (deceased) was to save his life and they tried to do so by first taking him to local hospital, wherefrom he was referred to a hospital at Hyderabad. Even in this process, they reported the matter to police and obtained of ficial letter of police for medical examination of Khalil Ahmad (deceased).
4. The ocular account in this case has been furnished by complainant Muhammad Sadiq (PW1), Rasheed Ahmad (PW2) and Abdul Rehman (PW3). All the three eye-witnesses remained consistent on all the material aspects so far as role of petitioner of causing dagge r blows on the person of Khalil Ahmad (deceased) is concerned. Though complainant Muhammad Sadiq (PW1) was declared hostile, but to the extent of petitioner , his testimony endorses the statements of other two eye-witnesses. The medical evidence adduced by Dr. Nizamuddin (PW6) who medically examined Khalil Ahmad in injured condition and Dr. Salahuddin (PW7) who conducted autopsy on the dead body of Khalil Ahmad supports the ocular account. During the course of investigation, a dagger was recovered on the pointation of the petitioner , which was blood stained. So far as contention of learned counsel for the petitioner that the learned appellate court has acquitted co-accused Abdul Ghafoor by disbelieving same set of evidence which has been believed qua petitioner is concerned, it has been observed by us that Abdul Ghafoor has been shown to be empty handed and no injury on the person of deceased Khalil Ahmad has been assigned to him except that he caught hold of deceased Khalil Ahmad. In these circumstances, it has been observed by us that the prosecution has successfully proved its case against the petitioner beyond reasonable doubt. The learned courts below have already taken a lenient view by not awarding sentence of death to the petitioner , which, in the circumstances of the case is justified.
5. For the foregoing, the instant criminal petition having no merit is dismissed and leave to appeal is refused.
6. The observation given in this judgment shall not, in any manner , cause prejudice to the case of absconding co- accused.