IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Criminal Appeal No.S-13 of 2021.

 

 

 

Appellant     :           Muhammad Junaid s/o Muhammad   Islam,

                                    Bycaste Abbasi. (Confined at Central Prison

                                     Sukkur).

 

Through Mr. Muhammad Hamzo Buriro, advocate.

 

The State     :           Through Syed Sardar Ali Shah Rizvi, Deputy

                                    Prosecutor General.

 

Complainant :        Muhammad Rafique Gopang in person.

Date of hearing     :           20-05-2021.

Date of decision    :           20-05-2021.

 

JUDGMENT

 

IRSHAD ALI SHAH, J; The facts in brief necessary for disposal of instant appeal are that the appellant allegedly with rest of the culprits in furtherance of their common intention caused acid injuries to PW Muhammad Raheel with intention to commit his murder, for that they were booked and reported upon.

2.         The appellant, co-accused Muhammad Tahir and Muhammad Islam were charged for the said offences, which they denied and the prosecution to prove it, examined complainant Muhammad Rafique and his witnesses and then closed its side.

3.         The appellant and the said co-accused in their statements recorded u/s 342 Cr.P.C denied the prosecution’s allegation by pleading innocence by stating that they have been involved in this case falsely by the complainant party due to political enmity. They did not examine anyone in their defence or themselves on oath in terms of section 340 (2) Cr.P.C.

4.        On conclusion of the trial, co-accused Muhammad Islam and Muhammad Tahir were acquitted by extending them benefit of doubt, while appellant was convicted and sentenced to undergo Imprisonment for fourteen years and to pay fine of rupees one million and in default whereof to undergo rigorous imprisonment for one year for offence punishable u/s 336-B r/w section 324 PPC by learned Additional Sessions Judge (Hudood) Sukkur vide his judgment dated 15-02-2021, 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 in order to satisfy with him their old enmity; the FIR has been lodged with delay of about one day and on the basis of same evidence, co-accused Muhammad Islam and Muhammad Tahir have been acquitted, while the appellant has been convicted and sentenced by learned trial Court. By contending so, he sought for acquittal of the appellant.

6.        Learned DPG for the State, who is assisted by the complainant, by supporting the impugned judgment, has sought for dismissal of the instant appeal.

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

8.        The FIR of the incident has been lodged with delay of about one day. No plausible to such delay has been offered. The charge was amended, whereby section 336-B PPC was inserted by learned trial Court contrary to the finding of the police, without recording evidence of anyone to determine the applicability of such section to facts and circumstances of the case, which is appearing to be significant. Dr. Muhammad Yaseen when was examined, was fair enough to say that the injuries sustained by PW Muhammad Raheel being superficial in nature were falling u/s 337L(II) PPC. Superficial injuries, that too on non-vital part of the body of the injured could hardly have been caused to him with intention to commit his murder. No finding for acquittal or conviction for an offence punishable u/s 337L(II) PPC has been recorded against the appellant. The appellant has been convicted and sentenced to undergo rigorous imprisonment for fourteen years with fine of rupees one million, and in default whereof to undergo R.I for one year for offence punishable u/s 336-B PPC r/w section 324 PPC. The single/jumble punishment for distinct offence is contrary to the mandate contained by sub-section (2) to section 367 Cr.P.C. The parties admittedly are inimical with each other. There is no recovery of any sort from the appellant. On investigation, as per I/O Khuda Bux, the appellant was found to be innocent. On the basis of same evidence, co-accused Muhammad Islam and Muhammad Tahir have been acquitted by learned trial Court. In these circumstances, it would be hard to maintain the conviction against the appellant.

9.        In case of Mehmood Ahmed & others vs. the State & another (1995 SCMR-127), it has been observed by the Hon’ble Apex Court that;

“Delay of two hours in lodging the FIR
in the particular circumstances of the case had assumed great significance as the same could be attributed to
consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate”.

 

10.       In case of Sardar Bibi and others vs. Munir Ahmed and others (2017 SCMR-344), it has been held by the Hon’ble Apex Court that;

“When the eye-witnesses produced by the prosecution were disbelieved to the extent of one accused person attributed effective role, then the said eye-witnesses could not be relied upon for the purpose of convicting another accused person attributed a similar role without availability of independent corroboration to the extent of such other accused”.

 

11.       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".

 

12.       In view of the facts and reasons discussed above, the conviction and sentence recorded against the appellant by way of impugned judgment are set-aside. Consequently the appellant is directed to be released forth with in the present case.

13.       Above of the reasons of short order dated 20-05-2021 whereby the instant appeal was allowed.

                                                                                                        JUDGE

                                                                                                             

Nasim/PA,