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 13th 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