IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 583 of 2021

Appellant: Muhammad Nauman through Mr. Intikhab Ahmed advocate

The State: Ms. Seema Zaidi, Additional Prosecutor General Sindh

Complainant: Bakhat Jameel through Syed Jawad Hyder Rizvi advocate

Date of hearing: 27.10.2022

Date of judgment: 02.11.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is the case of prosecution that the appellant with rest of the culprits in furtherance of their common intention, allegedly committed death of Bakhat Ameen, by causing him fist and kicks blows, for that the present case was registered. On conclusion of the trial, the appellant was convicted under Section 302(c) PPC and sentenced to undergo rigorous imprisonment for 14 years as tazir 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; he was further convicted under Section 452 PPC and sentenced to undergo rigorous imprisonment for 07 years with fine of Rs.50,000/- and in default whereof to undergo simple imprisonment for 06 months; all the sentences were ordered to run concurrently with benefit of section 382(b) Cr.P.C by learned Ist Additional Sessions Judge/MCTC Karachi West, vide judgment dated 24.09.2021, which is impugned by the appellant before this Court by preferring the 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 party in order to satisfy its dispute with him over partition wall of their houses; the FIR of the incident has been lodged with delay of about 01 day and no reliance could be placed upon evidence of the witnesses being managed. By contending so, he sought for acquittal of the appellant.

3. Learned Addl.P.G for the state and learned counsel for the complainant by supporting the impugned judgment have sought for dismissal of the instant appeal by contending that the appellant is vicariously liable for the commission of the incident.

4. Heard arguments and perused the record.

5. It was stated by complainant Bakhat Jameel that on 22.09.2016, when he, his father Bakhat Naeem, his mother Mst. Tasneem Bibi and brother Noorul Ameen were available in their house, there came the appellant with others, demanded from his father Rs.25,000/- towards expenses incurred on construction of partition wall of their houses, which his father refused to pay by saying that he has already paid Rs.25,000/- to them by way of private Faisala; on such refusal, they caused kicks and fists blows to his father, they intervened, they too were caused fists and kicks blows by the appellant. Nothing is brought on record which may suggest that the complainant and his witnesses too were caused fist and kick blows by the appellant and others at the time of incident. It was further stated by the complainant that after sustaining blows his father fell down, they raised cries, on their cries P.Ws Fazal Ali and Akbar Ali came, the appellant and others fled away. They took their father to Ziauddin Hospital. Nothing has been brought on record which may suggest that the complainant party in first instance took the deceased to Ziauddin Hospital. It was further stated by the complainant that at Ziauddin Hospital his father was declared dead and then they took his dead body to Civil Hospital, Karachi. I.O/SIP Raja Intezar of PS Jackson came at the hospital recorded his 154 Cr.P.C statement which on next date was incorporated into formal FIR of the incident. Co-accused Naeem admittedly has died in custody. No specific blow to the deceased is attributed to the appellant, therefore, his involvement in the present case on point of vicarious liability is appearing to be doubtful. As per P.Ws Noorul Ameen and Mst. Tasneem Bibi, their 161 Cr.P.C statements were recorded by IO/SIP Karam Ali Lashari on 03.10.2016 and 12.10.2016 respectively, it was with delay of 11 and 20 days to the incident. No plausible explanation to such delay is offered by the prosecution, therefore, their evidence could hardly be relied upon to maintain conviction. P.Ws Fazal Ali, Akbar Ali and Abdul Habib are not eye witnesses to the incident, therefore, their evidence hardly lends support to the case of prosecution. As per Medical officer Dr. Ali Raza, the actual cause of the death of the deceased could not be ascertained. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove the involvement of the appellant in commission of incident beyond shadow of reasonable doubt.

6. In case of Abdul Khaliq vs. the State (1996 SCMR 1553), it has been held by Hon’ble apex Court that;

“……It is a settled position of law that late recording of 161, Cr.P.C. statement of a prosecution witness reduces its value to nil unless there is plausible explanation for such delay.”

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 not required to be detained in any other custody case.

9. Instant appeal is disposed of accordingly.

JUDGE