JUDGMENT SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Jail Appeal No.S-87 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 : 21.02.2022.
Date of decision : 07.03.2022.
Mr. Habibullah Ghouri, Advocate for the appellant.
Syed Lal Shah, Advocate for legal heir of 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 Amanullah by causing him fire shot injuries and then went away by insulting the complainant party and making fires in air to create harassment, for that the present case was registered.
2. The appellant denied the charge and the prosecution to prove it examined complainant Habibullah and his witnesses and then closed its side.
3. The appellant in his statement recorded u/s.342 Cr.PC denied the prosecution allegation by pleading innocence by stating that he has been involved in this case falsely by the complainant party in order to satisfy its dispute with him. He did not examine any one in his defence or himself on oath, however he produced certain documents with an attempt to prove his innocence.
4. Learned Incharge 1st Additional Sessions Judge, Dadu, found the appellant guilty for committing murder of Amanullah by causing him fire shot injuries; therefore, convicted him under section 302 (b) PPC as Tazir and sentenced him to undergo R.I for life and to pay fine of Rs.400,000/- payable to legal heir of the deceased and in default whereof to undergo R.I for six months with benefit of Section 382-B Cr.PC, vide judgment dated 15.09.2012, which is impugned by the appellant before this Court by preferring the instant appeal from jail.
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 party; the FIR has been lodged with delay of about five hours; 161 Cr.PC statement of PW Ali Hassan has been recorded with delay of three days; there is conflict between the medical and ocular evidence and there is no recovery of any sort from the appellant; therefore, the appellant is liable to his acquittal.
6. Learned Addl.P.G for the State and learned counsel for legal heirs of 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 appellant beyond shadow of reasonable doubt.
7. I have considered the above arguments and perused the record.
8. It is inter-alia stated by complainant Habibullah and PW Ali Hassan that on the date of incident; they and the deceased went to look-after their lands; there came the appellant, co-accused Abdullah, Shah Nawaz, Hashim and Manzoor, they threatened them to withdraw from civil litigation and then at the instigation of accused Hashim, the appellant and Abdullah fired at the deceased, who by sustaining those fires fell down and died and then appellant and others went away; they reported the incident to police. The factum of death of the deceased being unnatural is confirmed by medical officer Dr. Arbab Ali Shah in his evidence and there hardly appears to be dispute between the medical and ocular evidence, which may make the case of prosecution to be doubtful. The complainant and his witness have stood at their version on all material points with regard to death of the deceased at the hands of appellant and others, despite lengthy cross examination; their evidence takes support from the ancillary evidence of PW/Mashir Muhammad Khan. They indeed, were having no reason to have involved the appellant in this case falsely at the cost of life of an innocent person only to settle their dispute with him over the landed property. The delay in lodgment of FIR by five hours has been explained by the complainant plausibly by stating that he arranged for transport to approach the police at P.S, K.N.Shah, which was situated at distance of 9/10 kilometers from the place of incident. No doubt, 161 Cr.PC statement of PW Ali Hassan as per I.O/SIP Bakhat Hussain has been recorded with delay of about three days but it hardly to be treated fatal to the case prosecution in peculiar circumstances of the case. If for the sake of arguments, evidence of PW Ali Hassan is taken out of consideration, even then the evidence of the complainant is found enough to involve the appellant in commission of the incident beyond doubt. It is quality of the evidence which prevails and not the quantity. Apparently, the appellant after incident went in absconsion and was arrested by the police when he was already found in custody in some other case at Sub-Jail Mehar. By that act, he defeated the recovery of crime weapon; therefore, he could not be extended any benefit under the pretext of no recovery from him. 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.
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. No mis/non-reading of the evidence has been pointed out, which may justify making interference with the impugned judgment by this Court by way of instant criminal jail appeal; it is dismissed accordingly.
JUDGE