IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Crl. Jail Appeal No. S-40 of 2010

Appellant: Hasul son of Muhammad Mithal, by caste, Mangrio, Resident of village Nawaz Mangrio, Taluka Rohri, District Sukkur.

Through Mr. A.R Farooq Pirzada, Advocate.

Mr. Rukhsar Ahmed Junejo advocate for legal heirs of the deceased.

Respondent: The State, through Mr. Aftab Ahmed Shar, A.P.G.

Date of hearing: 29-03-2021.

Date of decision: 29-03-2021.

J U D G M E N T

IRSHAD ALI SHAH, J. It is alleged that the appellant with rest of the culprits after having formed an unlawful assembly and in prosecution of their common object, committed murder of Billo by causing him fire shot injuries, for that the present case was registered.

2. At trial, appellant, co-accused Abdullah, Muhammad Waris and Din Muhammad @ Dino did not plead guilty to the charge and prosecution to prove it; examined complainant Eidan and his witnesses and then closed its side.

3. The appellant and above named co-accused in their statements recorded u/s 342 Cr.P.C denied the prosecution’s allegation by pleading innocence. They did not examine anyone in their defence or themselves on oath to disprove the prosecution’s allegation against them in terms of section 340 (2) Cr.P.C.

4. On conclusion of the trial, learned Additional Sessions Judge (Hudood) Sukkur acquitted the above named co-accused while convicted and sentenced the appellant to undergo rigorous imprisonment for 25 years for offence punishable u/s 302 (b) PPC with benefit of section 382-B Cr.P.C vide his judgment dated 25-02-2010, which is impugned by the appellant before this Court by preferring the instant Crl. 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 party only to satisfy its previous enmity with him; the ocular evidence is in conflict with the medical evidence; the gun has been foisted upon the appellant; on the basis of same evidence, co-accused Abdullah, Muhammad Waris and Din Muhammad @ Dino have been acquitted while the appellant has been convicted by the learned trial Court and appellant has already been acquitted in a case relating to recovery of unlicensed gun by the Court having jurisdiction. By contending so, he sought for acquittal of the appellant. In support of his contentions, he has relied upon the case of Muhammad Shah Vs. The State (2010 SCMR 1009) and Ghulam Qadir and 2 others Vs. The State (2008 SCMR 1221).

6. Learned A.P.G for the State and learned counsel for the legal heirs of the deceased by supporting the impugned judgment have sought for dismissal of the instant Crl. Appeal by contending that the prosecution has been able to prove its case against the appellant beyond shadow of doubt and his case is distinguishable to that of the acquitted co-accused.

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

8. It was stated by the complainant that on the date of incident, there came the appellant and others, out of them the appellant caused fire shot injuries to his brother Billo, who by sustaining those injuries fell down on the ground and died then and there. The death of the deceased being instantaneous is disputed by medical officer Dr. Abdul Aziz by stating that, the time between injuries and death of the deceased was about one hour. Such inconsistency between the evidence of medical office and the complainant could not be lost sight of, it goes to suggest that the complainant was not an eyewitness of the incident and has attracted to the incident subsequently and perhaps for this reason he lodged FIR of the incident with police with delay of about four hours, therefore the evidence of complainant being doubtful and its character could hardly be relied upon. As per PW Allah Wassayo, he came at the place of incident, on hearing of cries and was informed by the complainant that the appellant and co-accused have committed murder of his brother; it goes to suggest that he came at the place of incident when it was over. His evidence therefore, could safely be excluded from consideration. PW Imam Bux has not been examined by the prosecution. The inference, which could be drawn of his non-examination, would be that he was not going to support the case of prosecution. SIO Altaf Hussain Soomro, who has recorded FIR of the incident, visited the place of incident, secured the empties and bloodstained earth, prepared last chakas form and Danistnama has not been examined by the prosecution, for no obvious reason. His non-examination has prejudiced the appellant in his defence seriously.

9. As per SIO/SIP Muhammad Ayub, on arrest from the appellant, was secured the gun allegedly used by him in commission of incident. Such recovery obviously was made from the appellant on 13^th day of his arrest, which appears to be significant, same even otherwise has not been subjected to expert opinion for no obvious reason. No mashir to recovery of such gun has been examined by the prosecution. No question was put to the appellant during course of his examination u/s 342 Cr.P.C to have his explanation on such recovery by learned trial Court. In that situation the appellant could hardly be connected with recovery of such gun. In these circumstances, it could be concluded safely that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt and to such benefit, he is also found entitled.

10. 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".

10. 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 was charged, tried and convicted by the learned trial court, he is present in Court on bail, his bail bond is cancelled and surety is discharged.

11. The instant Crl. Appeal is disposed of accordingly.

J U D G E

Nasim/Steno