IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Appeal No.S-121 of 2019
Appellant : Ghulam Qadir s/o Muhammad Akram Khakhrani
Through Mr.Rafique Ahmed Abro, Advocate
The State : Through Mr. Aitbar Ali Bullo, D.P.G
Date of hearing : 10.09.2020
Date of decision : 10.09.2020
J U D G M E N T
IRSHAD ALI SHAH, J.- The appellant by preferring the instant criminal appeal has impugned judgment dated 07.11.2019, rendered by learned 1st Additional Sessions Judge/MCTC, Shikarpur, whereby he (appellant) has been convicted and sentenced as under;
“I, therefore, convict the accuse Ghulam Qadir son of Muhammad Akram by caste Khakhrani under section 265-H(2) Cr.PC for offences punishable under section 302 for commission of murder of deceased Ali Gohar and Mst. Amina and sentenced him to life imprisonment for each offence. The accused is also convicted for the offence punishable under section 311 PPC, to suffer R.I for ten years. All the sentences awarded to accused shall run concurrently. The accused is also extended benefit under section 382-B Cr.P.C, for the period he remained in jail as under trial prisoner.”
2. Facts in brief necessary for disposal of instant criminal appear are that the appellant with an unknown culprit, allegedly in furtherance of their common intention, committed Qatl-e-Amd of Ali Gohar and Mst.Amina, after declaring them “Karo-Kari” by causing them fire shot and lathi injuries and during course of such incident, PW Ali Hyder it is said has also sustained fire shot or lathi injuries, for that the present case was registered. On due investigation, it was challaned.
3. At trial, the appellant did not plead guilty to the charge and the prosecution to prove it, examined PW-01 Tapedar Azizullah, PW-02 complainant SIP Nisar Alam, PW-03 HC Rajib Ali, PW-04 WMO Dr. Marvi Qazi, PW-05 MLO Dr. Abdullah Channa, PW-06 Tapedar Anwar Ali and PW-07 Corpse Bearer HC Muhammad Siddique, thereafter closed its side.
4. The appellant in his statement recorded u/s.342 Cr.PC denied the prosecution’s allegation by pleading innocence by stating that;
“I am innocent and at the time of incident I was available at the Brick kiln of Rahooja @ Madeji. The deceased Ali Gohar alongwith other thieves trespassed in our house and only male member Ali Hyder and women folk were available and Mst.Amina scuffled thieves and firing of co-accused/companions Ali Gohar and Ali Hyder received injuries. The deceased Ali Gohar was criminal. I produce attested P.S copies of (09) FIRs at Exh.30/A to Exh.30/I. I pray for justice.”
The appellant in first instance wanted to examine him on oath, subsequently he refused to examine himself on oath. However, he examined Ali Hyder in his defence and then closed the side.
5. On evaluation of evidence, so produced by the prosecution, the appellant was found guilty for the above said offence and then 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 the appellant being innocent has been involved in this case falsely by the police and he has been convicted and sentenced by learned trial Court on the basis of virtually no evidence. By contending so, he sought for acquittal of the appellant.
7. Learned D.P.G for the State by supporting the impugned judgment has sought for dismissal of the instant appeal.
8. I have considered the above arguments and perused the record.
9. The FIR of the incident has been lodged by complainant SIP Nisar Alam Abro on behalf of the State, without involvement of the legal heirs of any of the deceased, which appears to be significant. As per the complainant and PW/HC Rajib Ali, on the date of incident, they with rest of the police personnel when were on patrol, came to know through spy information that the appellant and an unknown culprit have committed murder of Ali Gohar Shar and Mst.Amina, after declaring them “Karo-Kari” and during course of such incident, PW Ali Hyder has also sustained injuries. If such piece of their evidence is believed to be true then the complainant went at the place of incident with his witnesses, when it was almost over. In that situation, it would be safe to conclude that they were not eye witnesses of the incident. It was further stated by them that at the place of incident they were intimated by Ali Gohar who was found sustaining injuries that the deceased has been done by the appellant and unknown culprit by causing him fire shot and lathi injuries and such fact was allegedly affirmed by the appellant on his arrest before them with an addition that the deceased were done to death by him and unknown culprit, when they were found in objectionable condition. If, such piece of their evidence is believed to be true even then it could not be used against the appellant, as per the mandate contained by Article 38 of Qanun-e-Shahadat Order, 1984, being extra-judicial confession. PW Ali Hyder being sole eye-witness of the incident has been given up by the prosecution, for the reason that he was not going to support the case of prosecution. Such act on the part of prosecution was somewhat strange. PW Ali Hyder, however, was examined by the appellant in his defence and he came with different version by stating that;
“On 13.05.2015, I, my grandmother Mst.Sharma, my aunt Mst.Amina after taking night meal went to sleep. Our one buffalo and four cows were tethered in the courtyard of the house. We woke up on the noise and saw four thieves after committing theft of our cattle were going and two thieves were standing on door. My aunt Mst.Amina grappled with one thief and other thieves caused her butt blows and we resisted to which two thieves standing on the door fired, one fire was hit to me and other fire hit to another thief. I raised cries and thieves left the cattle and run away. My grandmother Mst.Sharma went to nekmards with whom she narrated the facts of incident and after arranging conveyance in the morning brought the dead body of thief, my aunt and Mst.Amina and me towards hospital. After that informed to police. Both the dead bodies of the deceased were got postmortem and I was provided medical treatment. I produce original CNIC bearing No.43301-6977797-3 which is seen and returned back to DW-1 and its Photostat copy at Exh.32/A”.
10. What Ali Hyder has stated in defence of the appellant, if is considered into juxta-position with the evidence of the prosecution, then the involvement of the appellant in this case is appearing to be doubtful.
11. On arrest from the appellant as per the complainant was secured the pistol, which he allegedly used in commission of the incident. There is no independent witness to arrest of the appellant and recovery of pistol from him despite advance information, which appears to be significant. Not only this, but the pistol has been subjected to its examination through Expert with delay of about eight days to its recovery. In that situation, the appellant could hardly be connected with recovery of pistol.
12. The discussion involved a conclusion that the prosecution could not be able to prove its case against the appellant beyond shadow of doubt, he is therefore found entitled to such benefit.
13. In case of Faheem Ahmed Farooqui vs. The State (2008 SCMR-1572), it has been held by the Hon’ble Apex Court that;
“single infirmity creating reasonable doubt regarding truth of the charge makes the whole case doubtful.
14. 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. The appellant shall be released forthwith in present case, if not required in any other custody case.
15. The instant appeal is dispose of accordingly.
J U D G E-