JUDGMENT SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Appeal No.S-65 of 2021.
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DATE ORDER WITH SIGNATURE OF HON’BLE JUDGE
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For hearing of main case.
03.01.2022
Mr. Faiz Muhammad Larik, Advocate for the appellants.
Mr. Ali Anwar Kandhro, Addl. Prosecutor General for the State.
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IRSHAD ALI SHAH, J;- It is alleged that the appellants with rest of the culprits, after having formed an unlawful assembly and in prosecution of their common object, deterred the police party of P.S, City, Jacobabad, led by ASI Ali Anwar Brohi, from discharging its lawful duty as public servant by making fires at them with intention to commit their murder, as result of such firing, PW/PC Zafarullah sustained fire shot injury, for that they were booked and reported upon by the police and on due trial, they were found guilty for the above offence and were convicted and sentenced to various terms spreading over seven years with fine with benefit of Section 382- B Cr.PC, by learned 2nd Assistant Sessions Judge, Jacobabad, vide judgment dated 18.09.2021, which is impugned by the appellants before this Court by preferring the instant criminal appeal.
2. It is contended by learned counsel for the appellants that they being innocent have been involved in this case falsely by the police and on the same evidence co-accused Altaf and Nadar Ali have been acquitted while the appellants have been convicted and sentenced by learned trial Court. By contending so, he sought for acquittal of the appellants by extending them benefit of doubt.
3. Learned Addl.P.G for the State by supporting the impugned judgment has sought for dismissal of the instant criminal appeal.
4. I have considered the above arguments and have perused the record.
5. Despite advance information, no independent witness was associated by complainant SIP Ali Anwar to witness the incident; such omission on his part could not be overlooked. Co-accused Altaf alias Tiloo and Nadar Ali on the basis of same evidence have already been acquitted. As per the complainant and PW/PC Zafarullah, the appellants and others were not known to them; if it was so, then the identity of the appellants and others at night time with specific role of causing fire shot injury to PW/PC Zafarullah is appearing to be doubtful. PW/PC Zafarullah at trial consented to grant of bail to appellant Ahsan Ali by filing his affidavit by stating therein that the accused involved in the incident were not known to him; they were with their faces muffled and he cannot say as to which of the accused fired at him. The affidavit so filed by PW/PC Zafarullah could not be overlooked being part of record, as it makes the involvement of the appellants in this case to be doubtful and to such benefit, they are also found entitled.
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 appellants by way of impugned judgment are set aside, consequently, they are acquitted of the offence for which they were charged, tried and convicted by learned trial Court; they shall be released forthwith in the present case, if are not required to be detained in any other custody case.
8. The instant criminal appeal is disposed of accordingly.
JUDGE