JUDGMENT SHEET

IN  THE  HIGH  COURT  OF  SINDH, CIRCUIT  COURT,  LARKANA

Criminal Appeal No.S-58 of 2012.

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DATE                                       ORDER WITH SIGNATURE OF HON’BLE JUDGE

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For hearing of main case.

Date of hearing  :      31.01.2022.

Date of decision :     21.02.2022.

                        Mr. Ali Anwar Sahar, Advocate for the appellant.

                        Mr. Muhammad Afzal Jagirani, Advocate for complainant.

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

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IRSHAD ALI SHAH - J;- The facts in brief necessary for disposal of instant criminal appeal are that the appellant with rest of the culprits, allegedly after having formed an unlawful assembly and in prosecution of their common object, committed murder of Gulsher by causing him fire shot injuries, for that the present case was registered.

2.                     The appellant, co-accused Niaz, Nizam and Sikandar Ali were charged for the said offence, which they denied and the prosecution to prove it, examined complainant Mst. Sharma and her witnesses and then closed its side.

3.                     The appellant and said co-accused in their statements recorded u/s.342 Cr.PC denied the prosecution’s allegation by pleading innocence. They did not examine anyone in their defence or themselves on oath in disproof of the prosecution’s allegation against them in terms of Section 342(2) Cr.PC.

4.                     On conclusion of trial, co-accused Niaz, Nizam and Sikandar Ali were acquitted by extending them benefit of doubt, while the appellant was convicted under section 302(b) PPC and sentenced to undergo imprisonment for life and to pay fine of rupees Four Lacs, payable to legal heirs of the deceased, and in default whereof to undergo S.I for six months, with benefit of Section 382-B Cr.PC, by learned Incharge 1^st Additional Sessions Judge, Dadu, vide judgment dated 26.05.2012, which is impugned by the appellant before this Court by preferring the instant criminal appeal.

5.                     It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the complainant in order to satisfy her matrimonial dispute with him; the FIR of the incident has been lodged with delay of about one day; PW Haji Mehar and PW/Mashir Muhammad Muneer have been given up by the prosecution; 161 Cr.PC statement of PW Deedar Ali has been recorded with delay of 18 days; there is no recovery of any sort from the appellant; the evidence of witnesses has been disbelieved in respect of co-accused Niaz, Nizam and Sikandar Ali,  while it has been believed in respect of appellant by convicting him by learned trial Court. By contending so, he sought for acquittal of the appellant. In support of his contention, he relied upon case of Muhammad Asif Vs. The State (2017 SCMR-486) and Muhammad Mansha Vs. The State (2018 SCMR-772).

6.                     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 case of co-accused Niaz, Nizam and Sikandar was distinguishable to that of the appellant and he has rightly been convicted by learned trial Court.

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

8.                     It was inter-alia stated by complainant Mst. Sharma and PW Deedar Ali that on the date of incident, when they, PW Haji Mehar and the deceased were sitting in their house; the deceased went outside of the house on knock at the door, he was followed by them, there they found the appellant, co-accused Niaz, Nizam, Sikandar Ali, duly armed with hatchets and weapons;  at instigation of co-accused Sikandar Ali, the appellant fired at the deceased, who by sustaining such fires on his chest fell down and died and all the accused then ran away; the deceased as per the complainant was killed by the appellant a day before his marriage only to satisfy his matrimonial dispute with him. The death of the deceased being unnatural is confirmed by medical officer Dr. Abdul Hameed in his evidence. Obviously, the case of the appellant is different to that of co-accused Niaz, Nizam and Sikandar Ali who have been acquitted by learned trial Court by extending them benefit of doubt. It was the appellant, who alone is attributed the specific role of causing fire shot injuries to the deceased to satisfy his matrimonial dispute with him. The complainant and her witnesses have stood at their version on all material points with regard to death of the deceased at the hands of appellant, despite lengthy cross examination and their evidence to that extent takes support from the ancillary evidence, which is produced by the prosecution. If for the sake of arguments, the evidence of PW Deedar Ali is kept out of consideration for late recording of his 161 Cr.PC statement; even then the evidence of the complainant is found enough to involve the appellant in commission of the incident. The complainant apparently was having no intention or ill-will to have involved the appellant being her grandson by making substitution with real culprit of the incident. No issue of mistaken identity of the appellant is involved. It is quality of the evidence, which has to be considered and not its quantity; therefore, non-examination of PW Haji Mehar and PW/Mashir Muhammad Muneer is appearing to be irrelevant.   Admittedly, the appellant after the incident preferred to go in absconsion. By such act, he defeated the recovery of crime weapon from him; therefore, he could not be extended benefit of his wrong doing. In these circumstances, it would be safe to conclude that the prosecution has been able to prove its case against the appellant beyond shadow of doubt. Indeed, the appellant has been dealt with leniently by learned trial Court by awarding him lesser punishment.

9.                     In case of Allah Bux Vs. Shammi and others (PLD 1980 SC-225),       it has been held by the Honourable Court that;

“Conviction, even in murder cases, held, can be based on testimony of a single witness if Court satisfied as to witness being reliable-Emphasis, held further, laid on quality of evidence and not on its quantity”.

10.                   The case law which is relied upon by learned counsel for the appellant is on distinguishable facts and circumstances; therefore, it hardly supports the case of the appellant.

11.                   In view of the facts and reasons discussed above, the instant criminal appeal fails and it is dismissed accordingly.

JUDGE