JUDGMENT SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Jail Appeal.No.S-14 of 2018.
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DATE ORDER WITH SIGNATURE OF HON’BLE JUDGE
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For hearing of main case.
18.11.2021
Mr. Rafique Ahmed K.Abro, Advocate for the appellant.
Mr. Ali Anwar Kandhro, Addl. Prosecutor General for the State.
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IRSHAD ALI SHAH, J.- The appellant allegedly for committing murder of Hakim Ali Shah and Suhail Shah, by causing them fire shot injuries, after due trial, on two separate counts, has been convicted and sentenced u/s.302(b) PPC to undergo rigorous imprisonment for life and to pay compensation of Rs.100,000/- each to legal heirs of the said deceased and in default whereof, to undergo simple imprisonment for six months each, with benefit of Section 382(b) Cr.PC, by learned 3rd Additional Sessions Judge, Shikarpur, vide judgment dated 17.01.2018, which has been impugned by the appellant before this Court by preferring the instant criminal appeal from jail.
2. 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/sentence by learned trial Court on the basis of no evidence; therefore, he is liable to his acquittal by extending him benefit of doubt.
3. Learned Addl.P.G for the State by supporting the impugned judgment has sought for dismissal of instant criminal jail appeal by contending that on arrest from the appellant has been secured the crime weapon and the prosecution has been able to prove its case against him beyond shadow of reasonable doubt.
4. I have considered the above arguments and perused the record.
5. Complainant Roshan Ali Shah and PW Abdul Sattar Shah during course of their examination have impliedly stated that they were not present at the time of incident. If they were not present at the time of incident, then they could not be said to be eye witnesses to the incident. Their evidence as such is of no help to the prosecution. PWs Shamsuddin and Mashir Rashid Shah have been given up by the prosecution. The presumption which could be drawn of their non examination under Article 129 of Qanun-e-Shahadat Order, 1984, would be that they were not going to support the case prosecution. As per Investigating Officer/SIP Karim Bux, on arrest from the appellant was secured T.T pistol of 30 bore, allegedly used by him in commission of the incident, it was sent by him to Expert for FSL report. No such report however is brought on record of this case. In these circumstances, it would be hard to maintain the conviction against the appellant on the basis of recovery of crime weapon alone. Thus, it would be safe to conclude that the prosecution has not been able to prove the involvement of the appellant in commission of the incident beyond the shadow of doubt.
6. In case of Muhammad Mansha Vs. The State (2018 SCMR-772), it has been held by the Hon’ble Apex Court that;
“4….Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted".
7. In view of above, the conviction and sentence awarded to the appellant by learned trial Court by way of impugned Judgment is set aside. Consequently, the appellant is acquitted of the offence for which he has been charged, tried and convicted by learned trial Court. He shall be released forthwith (in the present case) if is not required to be detained in any other custody case.
8. The instant criminal jail appeal is disposed of accordingly.