IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Appeal No.S-07 of 2020
Appellant : Asghar son of Akbar by caste Siyanch
Through Mr.Habibullah Ghouri, Advocate
The State : Through Mr.Muhammad Noonari, D.P.G.
Date of hearing : 15.05.2020
Date of decision : 15.05.2020.
J U D G M E N T
IRSHAD ALI SHAH-J; The appellant by preferring the instant criminal appeal has impugned judgment dated 08.01.2020, passed by learned Additional Sessions Judge, Ratodero, whereby he for an offence punishable under section 302 PPC, has been convicted and sentenced to undergo rigorous imprisonment for life as “Tazir” and to pay fine of rupees One Lac to be paid to legal heirs of deceased Zubair alias Zahoor and Mst.Latifan, and in default thereof to undergo simple imprisonment for 06 months, with benefit of section 382-B Cr.PC.
2. The facts in brief necessary for disposal of instant criminal appeal are that the appellant came at P.S Ratodero, with an unlicensed repeater gun and disclosed before ASI Bagh Ali that he has committed Qatl-e-Amd of Zubair alias Zahoor and Mst.Latifan by causing them fire shot injuries, after declaring them to be “Karo Kari”. On such information, ASI Bagh Ali went at scene of incident, there he met with Mst.Afsana widow of deceased Zubair alias Zahoor, she disclosed to him that there was no dispute of “Karap” but the appellant together with co-accused Akbar, Manzoor and Munir, in furtherance of their common intention have committed Qatl-e-Amd of Zubair alias Zahoor and Mst.Latifan by causing them fire shot injuries, in order to settle money dispute with them. No individual come forward to lodge the FIR of the incident, therefore, ASI Bagh Ali lodged the same on behalf of the State. The appellant and above named co-accused were challaned accordingly.
3. At trial, the appellant and above named co-accused did not plead guilty to the charge and prosecution to prove it, examined PW-01 Mst.Afsana, PW-02 complainant ASI Bagh Ali, PW-03 Mashir PC Ghulam Shabir, PW-04 Mashir PC Azhar Ali, PW-05 I.O/SIP Maqsood Ahmed, PW-06 Woman Medical Officer Dr.Zeesha Abro, PW-07 Medical Officer Dr.Amanullah, PW-08 Mashir PC Abdul Razzaque and then closed the side.
4. The appellant and above named co-accused except Munir (who has died before recording of his 342 Cr.PC statement) in their statements u/s. 342 Cr.PC denied the prosecution allegation by pleading innocence, they did not examine anyone in their defence or themselves on oath.
5. On evaluation of evidence, so produced by the prosecution, co-accused Akbar and Manzoor were acquitted while the appellant was convicted and sentenced accordingly by learned trial Court by way of impugned judgment.
6. It is contended by learned counsel for the appellant that Mst.Afsana being sole eye witness of the incident has not supported the case of prosecution; the repeater gun has been foisted upon the appellant by the police; on the basis of same evidence co-accused Akbar and Manzoor have been acquitted while the appellant has been convicted and sentenced by learned trial Court without lawful justification, therefore, according to him, the appellant is also entitled to acquittal by extending him benefit of doubt.
7. Learned D.P.G for the State by supporting the impugned judgment has prayed for dismissal of the instant appeal.
8. I have considered the above arguments and perused the record.
9. Admittedly, complainant ASI Bagh Ali is not eye witness of the incident and he has recorded FIR of the incident on the basis of disclosure which was allegedly made to him by the appellant, the same, if any, being extra-judicial confession could hardly be used against the appellant in terms of Article 38 of Qanun-e-Shahadat Order, 1984. PW Mst.Afsana who happened to be widow of deceased Zubair alias Zahoor being sole eye witness of the alleged incident, on account of her failure to support the case of prosecution has been declared to be hostile to the prosecution by learned prosecutor. PW/Mashir PC Ghulam Shabir in whose presence, the appellant was allegedly arrested and from him was allegedly recovered repeater gun by ASI Bagh Ali, has also been declared to be hostile to the prosecution by learned prosecutor probably on account of his failure to support the case prosecution. The evidence of PW/PC Azhar Ali who happened to be second mashir is silent with regard to preparation of memo of arrest and recovery of the alleged repeater gun from the appellant by ASI Bagh Ali, such repeater gun even otherwise as per report of ballistic expert has been send to him with delay of about 14 days and such delay having not been explained plausibly by I.O/SIP Maqsood Ahmed could not be overlooked. One out of two empty cartridges, allegedly secured from the place of incident even otherwise on examination by ballistic expert was found to be dissimilar with the repeater gun allegedly secured from the appellant. There is tampering over the time of arrival of dead bodies at hospital, which could not be lost sight of. As per Woman Medical Officer Dr.Zeesha, deceased Mst.Latifan was found to be sustaining bullet injury, which appears to be significant. As per I.O/SIP Maqsood Ahmed, he has prepared memo of scene of the incident. He in that respect is belied by PW/Mashir PC Azhar Ali by stating that it was prepared by complainant ASI Bagh Ali. In one breathe, it was stated by I.O/SIP Maqsood Ahmed that he recorded 161 Cr.PC statement of Mst.Afsana and on other breathe, he stated that it was recorded by complainant ASI Bagh Ali, which appears to be significant. On the basis of same evidence, co-accused Akbar and Manzoor have been acquitted by learned trial Court by extending them benefit of doubt. In these circumstances, it is rightly being contended by learned counsel for the appellant that the appellant too is entitled to benefit of such doubt.
10. In case of Sardar Bibi and others vs. Munir Ahmed and others (2017 SCMR-344), it was held by the Hon’ble Court that;
“When the eye-witnesses produced by the prosecution were disbelieved to the extent of one accused person attributed effective role, then the said eye-witnesses could not be relied upon for the purpose of convicting another accused person attributed a similar role without availability of independent corroboration to the extent of such other accused”.
11. In case of Faheem Ahmed Farooqui vs. The State (2008 SCMR-1572), it is held that;
“single infirmity creating reasonable doubt regarding truth of the charge makes the whole case doubtful.
12. For what has been discussed above, the conviction and sentence recorded against the appellant together with the impugned judgment are set-aside. Consequently, the appellant is acquitted of the offence for which he was charged, tried and convicted by learned trial Court. The appellant shall be released forthwith in the present case.
13. The instant appeal is allowed accordingly.
J U D G E