JUDGMENT SHEET

IN  THE  HIGH  COURT  OF  SINDH, CIRCUIT  COURT,  LARKANA

Criminal Appeal No.S-36 of 2019.

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DATE                                       ORDER WITH SIGNATURE OF HON’BLE JUDGE

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For hearing of main case.

03.02.2022

                        Mr. Asif Ali Abdul Razzak Soomro, Advocate for the appellant.

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 appellant allegedly with rest of the culprits, after having formed an unlawful assembly and in prosecution of their common object, committed murder of Dur Muhammad by causing him fire shot injury, for that the present case was registered. After due trial, co-accused Allah Bux and Ghulam Murtaza was acquitted while the appellant was convicted u/s.302(b) PPC and sentenced to undergo R.I for Life and to pay fine of rupees Five Lacs to the legal heirs of the deceased as compensation and in default whereof to undergo S.I for six months, with benefit of Section 382(b) Cr.PC, by learned 1^st Additional Sessions Judge/MCTC, Shikarpur, vide judgment dated 20.05.2019, which is impugned by the appellant before this Court by preferring the instant criminal appeal.

2.                    It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the complainant party on account of previous enmity; the FIR of the incident has been lodged with delay of about two days; it was night time incident, therefore, the identity of the appellant under headlight of motorcycle was doubtful and on the basis of same evidence, co-accused Allah Bux and Ghulam Murtaza have been acquitted, while the appellant has been convicted and sentenced by learned trial Court without lawful justification. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt. In support of his contentions, he relied upon case of Mehmood Ahmed and 3 others Vs. The State and others (1995 SCMR-127).

3.                    The complainant did not turn up to pursue the instant criminal appeal despite service of notice upon him twice. However, Addl.P.G for the State by supporting the impugned judgment has sought for dismissal of the instant criminal appeal by contending that the prosecution has been able to prove its case against the appellant beyond shadow of reasonable doubt and his case is distinguishable to that of       co-accused Allah Bux and Ghulam Murtaza, who have been acquitted by learned trial Court.

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

5.                    Complainant Muhammad Ayoob and PW Mumtaz Ali, who happened to be the father and brother of the deceased have assigned the role of causing fire shot injury to absconding co-accused Sabal. As against them, as per PW Manthar Ali, the appellant and others fired at them, consequently, deceased after sustaining fire shot injury fell down. The injury to the deceased is not attributed by him to any of the accused specifically; if his evidence is believed to be true then it is inconsistent to the evidence of the complainant and PW Mumtaz Ali. No inconsistent evidence could be relied upon to base conviction. There is no recovery of any sort from the appellant even after his arrest. Co-accused Allah Bux and Ghulam Murtaza on the basis of same evidence have already been acquitted by learned trial Court. In these circumstances,  it could be concluded safely that the prosecution has not been able to prove the involvement of the appellant in commission of the incident beyond shadow of reasonable doubtful and to such benefit he too is 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 the facts and reasons discussed above, the conviction and sentence awarded to the appellant by way of impugned judgment are set aside, consequently, he is acquitted of the offence for which he has been charged, tried and convicted by the learned trial court, he shall be released forthwith in present case, if is not required to be detained in any custody case.

8.                    The instant Criminal Appeal is disposed of accordingly.

              JUDGE