ORDER   SHEET

IN  THE  HIGH  COURT  OF  SINDH, CIRCUIT  COURT,  LARKANA

Criminal Appeal No.D-12 of 2019.

Crl.Conf:Reference No.D-04 of 2019.

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DATE                                       ORDER WITH SIGNATURE OF HON’BLE JUDGE

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Before:

Mr. Justice Irshad Ali Shah,

 Mr. Justice Agha Faisal,

For hearing of main case.

12.01.2022

                        Mr. Habibullah Ghouri, Advocate for the appellants.

                        Mr. Riaz Hussain Khoso, Advocate for the complainant.

                        Mr. Ali Anwar Kandhro, Addl.P.G for the State.

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IRSHAD ALI SHAH, J.- It is case of prosecution that the appellants, allegedly together with rest of the culprits, after having formed an unlawful assembly and in prosecution of their common object, committed murder of Sarwar Chandio and Abdul Hakeem @ Sanam Jatoi, by causing them fire shot injuries and then went away by misappropriating their motorcycle, for that they were booked and reported upon by the police. After due trial, they for committing murder of the said deceased were awarded the death penalty with fine of rupees Two Lacs each payable to legal heirs of the said deceased as compensation, besides this, they for offence punishable u/s.148 PPC were convicted and sentenced to undergo R.I for one year each and for offence punishable u/s.404 PPC were convicted and sentenced to undergo R.I for two years, by learned 2^nd Additional Sessions Judge, Mehar, vide judgment dated 25.02.2019, which is impugned by the appellants before this Court, by preferring the instant appeal and a reference under section 374 Cr.PC is also made by learned trial Court for confirmation of death sentence to the appellants, those are being disposed of by this Court through a common judgment.

2.                     It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the complainant party; there is no recovery of any sort from them even after their arrest; the FIR of the incident has been lodged with delay of one day; 161 Cr.PC statements of the PWs have been recorded with further delay of seven days even to FIR and the evidence of the prosecution witnesses being doubtful in its character has been believed by learned trial Court without assigning cogent reasons; therefore, the appellants are entitled to their acquittal by extending them benefit of doubt. In support of his contentions, he relied upon cases of Ashfaq Ahmed Vs.The State (2007 SCMR-641), 2). Zafar Vs. The Stat and others (2018 SCMR-326) and 3). Abdul Jabbar and another Vs. The State (2019 SCMR-129).

3.                     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 appeal by contending that the prosecution has been able to prove its case against them beyond shadow of doubt. Simultaneously, they prayed for confirmation of death sentence to the appellants.

4.                     We have considered the above arguments and perused the record.

5.                     Complainant Deedar Ali and PW Altaf Ali have inter-alia stated that on the date of incident, they, PWs Hussain Bux and the deceased after attaining invitation of their friend Papu Mugheri at village Hazoor Khan Mugheri, were going back to their village through separate motorcycles, when reached adjacent to village Hassan Abad, they were confronted by the appellants and others, who caused fire shot injuries to Sarwar Chandio and Abdul Hakeem @ Sanam Jatoi and then they went away by taking their motorcycle. On sustaining fire shot injuries, Sarwar Chandio died at the spot, while Abdul Hakeem @ Sanam Jatoi died on his way to C.M.C Hospital, Larkana. As per postmortem report, time between injuries and death of deceased Sarwar Chandio was ½ hour that means his death was not instantaneous, as is claimed by complainant Deedar Ali and PW Altaf Ali; such inconsistency between their and medical evidence could not be overlooked, which has made their presence at time of incident to be doubtful and such fact is confirmed by I.O/ASI Qurban Ali by stating that the complainant and his witness came at the place of incident after 10 to 15 minutes, subsequent to his arrival. Even otherwise, if the complainant and his witness would have been with the deceased at the time of incident then naturally they would have attempted to save their lives by shifting them to hospital timely. In such situation, delay in lodgment of the FIR by the complainant even by one day could not be overlooked; it is reflecting deliberation and consultation. The 161 Cr.PC statement of PW Altaf Ali is recorded with delay of about seven days to the incident and such delay having not been explained plausibly by the prosecution, could not be overlooked, which has put him within ambit of a chance witness. In that situation, the evidence of the complainant and his witness being doubtful in its character could hardly be relied upon to maintain the conviction. PW Hussain Bux at whose instance, the police party of P.S Thariri Mohabat went at the place of incident, has not been examined by the prosecution, for no obvious reason; the presumption which could be drawn of his non-examination under Article 129 of the Qanun-e-Shahadat Order, 1984, would be that he was not going to support the case of prosecution. There is no recovery of any sort from the appellants even after their arrest. No motive of the incident has been advanced by the prosecution. In such situation, it could be concluded safely that the prosecution has not been able to prove the involvement of the appellants in this case beyond shadow of doubt and to such benefit, they are found entitled.

6.                     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”.      

7.                     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.”

8.                     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".

9.                     In view of the facts and reasons discussed above, the conviction and sentence awarded to the appellants by way of impugned judgment are set aside, consequently, they are acquitted of the offences, for which they have been charged, tried and convicted by the learned trial court, they shall be released forthwith in the present case, if are not required to be detained in any custody case.

10.                   The instant Criminal Appeal is disposed of accordingly, while death reference is answered in negative.

              JUDGE

             JUDGE                

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