JUDGMENT SHEET

IN  THE  HIGH  COURT  OF  SINDH, CIRCUIT  COURT,  LARKANA

Criminal Jail Appeal.No.S-65 of 2019.

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DATE                                       ORDER WITH SIGNATURE OF HON’BLE JUDGE

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            For hearing of main case.

Date of hearing         : 09.12.2021            

Date of decision        : 16.12.2021

                        M/S.Wazir Hussain Khoso & Riaz Hussain Khoso,

Advocate(s) for the appellants.

Makhdoom Syed Tahir Abbas Shah, Advocate for complainant.

Mr. Ali Anwar Kandhro, Addl. Prosecutor General for the State.

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IRSHAD ALI SHAH, J;- It is case of prosecution that the appellants in furtherance of their common intention, committed murder of Mst.Sania, for that they were booked accordingly. On due trial, they for the said offence were convicted and sentenced to undergo imprisonment for life and to pay compensation of Rs.100,000/- each to the legal heirs of deceased and in default whereof, to undergo simple imprisonment for six months, with benefit of Section 382-B Cr.PC, by learned 1^st Additional Sessions Judge/MCTC, Dadu, vide judgment dated 22.06.2019, which is impugned by the appellants by this Court by preferring the instant criminal appeal from jail.

                        It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case by the complainant party in order to satisfy its matrimonial dispute with them; it was night time incident, therefore, the identity of the appellants was doubtful; the evidence of the witnesses being doubtful has been believed by the learned trial court without lawful justification, therefore, the appellants are entitled to their acquittal. In support of his contention, he relied upon cases of Zafar Vs. The State and others (2018 SCMR-326) and Mian Sohail Ahmed and others Vs. The State and others (2019 SCMR-956).

                        Learned Addl.P.G for the State and learned counsel for the complainant by supporting the impugned judgment have sought for dismissal of the instant criminal jail appeal by contending that the prosecution has been able to prove its case against the appellants beyond shadow of doubt. In support of their contention, they relied upon case of Roohul Amin and another Vs. The State and others (2014 SCMR-348).

                        I have considered the above arguments and perused record.

                        It is stated by complainant Mst.Waziran in her FIR that on 18.04.2012, when she, deceased Mst.Sania, PWs Irshad Ali and Mst.Afshan were sleeping in their house; they woke up on hearing knock at door of their house; then they found the appellants to have come inside their house. The identity of the appellants is based by the complainant under the light of bulbs. There is no mention of bulb in mashirnama of place of incident. Even otherwise, the identity of the appellants by the complainant and her witnesses at night time under the light of bulb obviously is appearing to be doubtful. Be that as it may, it was stated by the complainant and PW Mst.Afshan during course of their examination that Mst.Sania was married with Ayaz Ali and she obtained Khulla from her through Court, on that the appellants were annoyed. On the night of incident, the appellants came in their house, and out of them appellant Roshan Ali committed murder of Mst.Sania by causing fire shot injury on her neck and then all the appellants went away by making aerial firing. As per memo of place of incident, single bullet of 30 bore was secured from the place of incident. In that situation, the involvement of appellants Ayaz Ali, Mureed and Shah Ali in commission of the incident on the basis of vicarious liability and/or allegation of making aerial firing is appearing to be doubtful. As per medical officer Dr. Tabasum, the deceased sustained fire shot injury on her neck while she was sleeping. If, all the members of the house woke up on arrival of the appellants on hearing of knock at their door, then why Mst.Sania being subject matter of the dispute, was still sleeping, which appears to be surprising. It goes to suggest that she was done to death in a manner other than the one claimed by the prosecution. On cries, as per the complainant and PW Mst.Afshan, the neighbourers came. No neighbor, who attracted to cries of the complainant party, is examined by the prosecution. Mst.Sania as per the complainant then was taken by her to hospital through Car. PW/Mashir Hubdar Ali came with different version, according to him his mother took the deceased to hospital in Car. The FIR of the incident has been lodged on 19.04.2012, it was with delay of about one day to the incident. No plausible explanation to such delay is offered by the prosecution. The 161 Cr.PC statement of PW Mst.Afshan, as per SIO/SIP Safdar Hussain, was recorded by him on 22.04.2012; it was with delay of about four days to the incident. No explanation to such delay is offered by the prosecution. PW Irshad is not examined by the prosecution for the reason that he was mentally ill. Nothing has been brought on record in shape of medical certificate which may suggest that he actually was mentally ill. His non-examination as such could not be overlooked. No report of chemical or ballistic expert is produced on record by the prosecution. In these circumstances, the plea of innocence, which the appellants have taken at trial, ought not to have been ignored by learned trial Court.

            In case of Mehmood Ahmed & others vs. the State & another (1995 SCMR-127), it was observed by the Hon’ble Court that;

“Delay of two hours in lodging the FIR
in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate”.   

                        In case of Abdul Khaliq vs. the State (1996 SCMR 1553), it was observed by Hon’ble Court that;

“It is a settled position of law that late recording of 161, Cr.P.C. statement of a prosecution witness reduces its value to nil unless there is plausible explanation for such delay.”

                        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".

                        The case law which is relied upon by learned Addl.P.G for the State is on distinguishable facts and circumstances. In that case, there was single accused involved in commission of the incident and the involvement of the accused, the prosecution was able to prove beyond shadow of doubt. In the instant case, there are four accused and their involvement, the prosecution has not been able to prove beyond doubt.  

                        In view of above, the impugned judgment is set aside, consequently, the appellants are acquitted of the offence for which they have been charged, tried and convicted by learned trial Court; they shall be released forthwith in the present case, if not required to be detained in any other custody case.

                        The instant criminal jail appeal is disposed of accordingly.

     JUDGE      .