IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 582 of 2021

  

                                                       

Appellant:                    Mirza through Mr. Habib-ur-Rehman Jiskani advocate

 

The State:                      Through Mr. Siraj Ali Khan Chandio, Additional Prosecutor General Sindh

 

Date of hearing:           04.11.2022

 

Date of judgment:        04.11.2022

 

 

J U D G M E N T

 

IRSHAD ALI SHAH, J- The facts in brief necessary for disposal of instant jail appeal are that the appellant allegedly committed murder of unknown person (who later on came to be known as Gul Baba), by causing  him blows with danda and stone, for that he was booked and reported upon. On conclusion of trial, he was convicted under Section 302(b) PPC and sentenced to undergo life imprisonment 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 1st Additional Sessions Judge/ MCTC, Karachi South vide judgment dated 20.08.2020, which is impugned by the appellant before this Court by preferring the instant jail 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 police and has been convicted virtually on the basis of no evidence, therefore, he is entitled to his acquittal, which is opposed by learned Addl. P.G for the state by contending that the prosecution has been able to prove its case against him beyond shadow of doubt.

3.       Heard arguments and perused the record.

4.       It was stated by complainant SIP Rana Ghulam Rasool and P.W/H.C Sagheer Ahmed that on 27.09.2013, when they with rest of the police personnel were conducting patrol, there came running to them two boys, who intimated them that one person has committed death of other by causing him danda and stone blows at main Sea view Road Clifton, Karachi. On such information, they proceeded to the pointed place. It prima facie suggests that they reached at the place of incident when it was virtually over, therefore, they could not be treated eye witness to the incident. It was further stated by them that they apprehended the appellant and secured from him danda and stone, who on inquiry disclosed to them that he has committed the murder of the deceased. If for the sake of arguments, it is believed that such disclosure was actually made by the appellant before the complainant and above named witness; even then same being inadmissible in terms of Article 38 of Qanun-e-Shahadat Order, 1984 could not be used as evidence. It was further stated by them that the appellant then was taken to P.S Boat Basin, there he was booked in the present case formally and further investigation was conducted by I.Os/SIP Ghulam Rasool and Waseem Ahmed. None of the boy who actually intimated the complainant about the incident has been examined by the prosecution; their non-examination could not be overlooked, which has deprived the appellant in his defence seriously. It was P.W Jan Muhammad, who is examined by the prosecution as an eye witness to the incident. It was stated by him that he saw the appellant committing the death of the deceased by causing him danda and stone blows and his 161 Cr.P.C statement was recorded by police on 28.09.2013. It was with delay of 01 to the incident. If he was available then why he did not attempt to save the deceased, his failure to do so has created doubt about his availability at the place of incident. Even otherwise, no explanation is offered by the prosecution for recording his 161 Cr.P.C statement with delay of about 01 day to the incident, which prima facie, suggests that he was introduced in investigation by the police subsequently, obviously with ulterior motives. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt and to such benefit he is found entitled.

5.       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.”

 

6.       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".

 

7.       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.

8.       Instant jail appeal is disposed of accordingly.

                   JUDGE