IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 174 of 2021

Appellant: Hameed Hammad Fahad through Mr.Ajab Khan Khattak advocate

The State: Through Mr. Faheem Hussain Panhwar, Deputy Prosecutor General Sindh

Date of hearing: 01.11.2022

Date of judgment: 01.11.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is the case of the prosecution that the appellant committed murder of his father Malik Ghulam Muhammad by causing him lathi blows, for that he was booked and reported upon. On conclusion of trial, he was convicted under Section 302(b) PPC and sentenced to undergo imprisonment for life and to pay compensation of Rs.500,000/- to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for 06 months with benefit of section 382(b) Cr.P.C by learned Additional Sessions Judge-I, Karachi East vide judgment dated 02.03.2021, which is impugned by him before this Court by way of instant appeal.

2. 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 his dispute with him over property; there is no eye witness to the incident; the FIR of the incident has been lodged with delay of 12 days and dying declaration of the deceased being oral made before interested person being doubtful in its character has been believed by learned trial Court without lawful justification. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt. In support of his contentions, he relied upon cases of Mst. Zahida Bibi vs. The State (PLD 2006 S.C 255) and Farman Ahmed vs. Muhammad Inayat and others (2007 SCMR 1825).

3. None has come forward to advance arguments on behalf of the complainant. However, learned DPG for the state by supporting the impugned judgment has sought for dismissal of instant appeal by contending that delay in lodgment of FIR has been explained plausibly and dying declaration of the deceased being natural has rightly been believed by learned trial Court.

4. Heard arguments and perused the record.

5. It is stated by complainant Malik Farrukh that on 22.02.2018, when he came back to his house, found his father lying in street near to his house in injured position and was being held by people. None from those people has been examined, for no obvious reason; such omission on part of prosecution could not be overlooked. It was further stated by the complainant that on inquiry, he disclosed to him that the appellant has beaten him on account of his refusal to give him one more shop; on such disclosure, he took his father to Liaquat National Hospital. P.Ws Umair Ahmed and Muhammad Absar have supported the complainant to the extent that it was also disclosed to them by the deceased that he was beaten by the appellant. If for the sake of arguments, it is believed such a disclosure was actually made by the deceased before the complainant and his above named witnesses; then all of them were under lawful obligation to have reported the incident to police promptly. It was not done by them, for no obvious reason, such omission on their part could not be overlooked, which has made their version that the deceased actually made oral dying declaration before them implicating the appellant in commission of incident to be doubtful. Besides, above the complainant was fair enough to admit that there is no eye witness to the incident. By stating so, it was further stated by him that his father died of such blows at Liaquat National Hospital on 05.03.2018, his dead body then was shifted to Jinnah Hospital Karachi for postmortem and on 06.03.2018, he lodged report of the incident with PS PIB Colony, Karachi. It was recorded by I.O/SIP Mirza Muhammad Safdar. It was with delay of about 12 days in lodgment of the FIR, such delay in lodgment of FIR could not be overlooked, it apparently is reflecting consultation and deliberation. It was stated by I.O/SIP Alam Shah that he visited the place of incident; it was room of the deceased in his house. It is contrary to the version of the complainant that deceased was found lying in injured condition in a street near to his house. Perhaps in that context, it is contended by learned counsel for the appellant that the deceased being old person of 84 years of age might have died on sustaining blows on account of his fall on the ground. Even otherwise, none is examined by the prosecution from Liaquat National Hospital to prove the health condition of the deceased at the time when he was admitted there in injured condition, such omission too could not be overlooked on the part of prosecution. In these circumstances, it is safe to conclude that the involvement of the appellant in present case is not free from doubt.

6. In case of Muhammad Asif vs the State (2008 SCMR 1001), it has been held by Hon’ble apex Court that;

“…..yet there is a delay of about two hours which has not been explained. Similarly P.W.7 stated during cross-examination that the police reached the spot at twelve noon and about half an hour was consumed in conducting inquest proceedings and thereafter the dead body was sent to the hospital. He further stated that he accompanied the dead body which was taken in a wagon to the hospital and that it took only 15 or 20 minutes in reaching the hospital. In that case the dead body would have been received at the hospital by 1-00 p.m. On the contrary, the doctor, who is an independent witness, stated that he immediately started post mortem examination after the receipt of body and the time of post-mortem given by him was 4-50 p.m. that means that the body remained at the spot for quite some time. The F.I.Rs. which are not recorded at the police station suffer from the inherent presumption that the same were recorded after due deliberations…...”

7. 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".

8. In view of 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, convicted and sentenced by learned trial Court and he shall be released forthwith, if is not required to be detained in any other custody case.

9. The instant appeal is disposed of accordingly.

JUDGE