IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Crl. Appeal No.S- 126 of 2011

 

Appellant:                 Bashir son of Chanesar bycaste Mehrani.

Through Mr. Irshad Hussain Dharejo advocate.

 

Complainant.           Lal Muhammad Mehrani, though Mr. Allah Dino

                                    Kubar, advocate.   

 

Respondent:            The State, through Mr. Syed Sardar Ali Shah,

                                    Deputy Prosecutor General

 

Date of hearing:     20-05-2019

Date of decision:    20-05-2019

 

JUDGMENT

 

IRSHAD ALI SHAH, J; The appellant by way of instant Cr. Appeal has impugned judgment dated 26-09-2011 whereby he for an offence punishable u/s 302(b) PPC for committing death of deceased Khan Muhammad by causing him fire shot injuries has been convicted and sentenced to undergo imprisonment of life and to pay fine of Rs. 50,000/- to the legal heirs of deceased Khan Muhammad, by learned IIIrd Additional Sessions Judge Khairpur.

2.                    At trial the appellant did not plead guilty to the charge and prosecution in order to prove it examined PW/1 complainant Lal Muhammad, he produced FIR of the present case, PW/2 Gul Bahar, PW/3 Niaz Muhammad, PW/4 Dr. Hassan Shah, he produced postmortem report of dead body of the deceased, PW/5 Hidayatullah, PW/6 SIO/SIP Sikandar Ali, he produce memos of place of incident, examination of dead body of the deceased, recovery of clothes of deceased, arrest of the appellant and recovery of hatchet from him, report of chemical examiner, PW/7 Nisar Ali and then closed the side.

3.                    The appellant in his statement recorded u/s 342 CrPC denied the prosecution allegation by pleading innocence by stating that he has been involved in this case falsely by the complainant party in order to satisfy their dispute with him over matrimonial affairs and landed property. He did not examine himself on oath or anyone in his defence.

4.                    On conclusion of the trial, learned trial Court convicted and sentenced the appellant as stated above.

5.                    It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the complainant party in order to satisfy their dispute with him over landed property and matrimonial affairs; only independent witness of the incident was PW Zamir, he was given up by the prosecution under the pretext that he has been won over by the appellant; the complainant and witnesses were having reason to depose falsely against the appellant and even otherwise no effective role in commission of incident is attributed against the appellant. By contending so, he sought for acquittal of the appellant.

6.                    Learned DPG for the State and learned counsel for the complainant by supporting the impugned judgment have sought for dismissal of the instant Cr. Appeal of the appellant by contending that the appellant is vicariously liable for commission of incident.

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

8.                    Unnatural death of deceased Khan Muhammad is proved of evidence medical officer Dr. Hassan Shah. Now is to be examined the liability of the appellant towards the present incident. It is stated by complainant Lal Muhammad, PWs Niaz Muhammad and Hidayatullah that on 09-04-2007 when they and deceased were returning from their land after harvesting the crop, when reached at Sim Nali, there they were confronted by accused Gul Hassan alias Gulshoo with gun, Mir Khan with pistol and appellant with hatchet, they were kept under fear of death by the appellant by pointing his hatchet over them and then accused Gul Hassan alias Guloo and Mir Khan fired at Khan Muhammad with their respective weapons, who after sustaining those fires fell down and died and then accused fled away. If for the sake of the arguments, what the complainant and his witnesses have stated, is believed to be true, then the specific role of committing death of deceased Khan Muhammad by causing him fire shot injuries is attributed to co-accused Mir Khan and Gul Hassan alias Guloo. In that situation, the involvement of the appellant in commission of incident on the basis of allegation that he by pointing his hatchet kept the complainant and his witnesses under the fear of death is appearing to be doubtful. PW Zamir Ahmed who being only independent witness to the incident has not been examined by the prosecution under the pretext that he has been won over by the appellant. Co-accused Mir Khan as per SIO/SIP Sikandar on investigation was found to be innocent and was let off accordingly. In that situation, the appellant could not be held responsible for death of deceased Khan Muhammad only on the basis of recovery of hatchet from him, which significantly was recovered from him on 7th day of his arrest and for such recovery PW Mashir Nisar Ali was fair was enough to state that he does not remember when such hatchet was recovered and at what time it was recovered. In these circumstances, it would be very hard to maintain conviction against the appellant.  

9.                    In case of Tarique Pervez 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.”

10.                  In view of the facts and reasons 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 present in Court on bail, his bail bond is cancelled and surety is discharged.

11.                  The instant appeal is disposed of in above terms. 

Judge

 

Nasim/P.A