IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

 

Crl. Jail Appeal No.S- 37 of 2014

 

                       

Appellant:                 Muhammad Saleh son of Ghazi Khan bycaste Chang,  through Mr. Ghulam Shabbir Dayo, Advocate

 

Respondent:            The State, through Mr. Aftab Ahmed Shar,

                                    Additional Prosecutor General.

 

Date of hearing:     10-05-2019.

Date of decision:    10-05-2019.

 

 

JUDGMENT

 

IRSHAD ALI SHAH, J; The appellant by way of instant Criminal Jail Appeal has impugned judgment dated 23-05-2014, passed by learned 1st Additional Sessions Judge Khairpur, whereby he for an offence punishable u/s 302 (b) PPC for having committed death of Mst. Mehnaz with iron rod has been convicted and sentenced to undergo imprisonment for 25 years and to pay compensation/fine of Rs. 50,000/- to the mother of deceased Mst. Mehnaz and in case of default in payment of compensation amount, he would undergo simple imprisonment for six months more, with benefit of section 382-B Cr.PC. 

2.                    At trial, the appellant did not plead guilty to the charge and prosecution to prove it, examined PW/1 complainant Mehboob Ali at (Ex.4), he produced copy of FIR, PW/2 Dadan at (Ex. 5), he produced the receipt of taking over the dead body, his statement under section 164 CrPC, PW/3 Muhammad Ali at (Ex. 6), he produced statement under section 164 CrPC, PW/4 mashir Abid Ali at (Ex.7), he produced memo of wardhat, memo of arrest and memo of recovery of iron rod, PW/5 Dr. Jameela Illahi WMO at (Ex. 8), she produced police letter and postmortem report, PW/6 SIO Ehsan Ali at (Ex. 9), PW/7 SIP Asghar Ali Chang at (Ex. 10), he produced entry No.6, letter to M.O, inquest report, and arrival entry No. 8 and copy of entry No. 5 & 6 about registration of FIR, PW/8 PC Muhammad Khan at (Ex. 11 and PW/9 Tapedar Muhammad Khan at (Ex.12), he produced the report along with sketch, therefore learned ADPP for the State closed the side of prosecution vide Ex. 13.

3.                    The appellant in his statement recorded u/s 342 Cr.P. C denied the prosecution allegation by pleading innocence, he did not examine himself on oath nor anyone in his defence.

 

4.                    On evaluation of the evidence so produced by the prosecution, the learned trial Court convicted and sentenced the appellant, as is detailed above.

5.                    It is contended by learned counsel of the appellant that the appellant being innocent has been involved in this case falsely by the police; there is one day delay in lodgment of FIR, the complainant has not supported the case of prosecution and the evidence of witnesses being inconsistent and doubtful has been believed by learned trial Court without lawful justification. By contending so, he sought for acquittal of the appellant.

 

6.                    Learned APG for the State and complainant in person have not supported the impugned judgment.

7.                    I have considered the above arguments and perused the record.

8.                    The complainant during course of his examination did not support the case of prosecution by stating that the accused who committed the death of his wife Mst. Mehnaz by causing her iron rod blows was with his face muffled. If the evidence of complainant is believed to be so, then it exonerate the appellant from the commission of incident. Admittedly, the FIR of the incident has been lodged with delay of one day. No plausible explanation to such delay has been offered by the prosecution, which prima facie suggests that PWs Dadan and Muhammad Ali have been introduced as witness of the incident after due deliberation. If for the sake of argument, it is believed that PW Muhammad Ali and Dadan have actually witnessed the incident, even then their evidence could not be given preference over and above the evidence of the complainant. In these circumstances, it would be hard to maintain the conviction against the appellant.

9.                    The conclusion which could be drawn of above discussion, would be that the prosecution has not been able to prove its case against the appellant.

10.              In case of Tarique Bashir vs. The State (1995 SCMR 1345), it has been held by Hon’ble Apex Court that;

“For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt- if a simple circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right.”

11.                  For what has been discussed above, the impugned judgment is set aside, consequently, the appellant is acquitted of the offence for which he was charged, tried and convicted by learned trial Court, he is in custody and shall be released forthwith in the present case.

12.                  The instant jail appeal stands disposed of in above terms.

 

Judge

 

Nasim/P.A