IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 237 of 2017

Appellant: Naveed through Mr. Iftikhar Shah advocate

The State: Through Mr. Hussain Bukhsh Additional Prosecutor General Sindh

Date of hearing: 01.09.2022

Date of judgment: 01.09.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant and co-accused Akram were charged for committing murder of Afsar Khan by causing him fire shot injuries and after due trial co-accused Akram was acquitted while the appellant was convicted for an offence punishable under Section 302(b) PPC and sentenced to undergo life imprisonment with fine of fine of Rs.50,000/- payable to the legal heirs of the deceased as compensation by learned Additional Sessions Judge-IX, Karachi West, vide judgment dated 31.01.2017, which is impugned by the appellant before this Court by filing the instant appeal from Jail.

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; the FIR of the incident has been lodged with delay of 01 day; the incident was unseen and on the basis of same evidence co-accused Akram has been acquitted while the appellant has been convicted by learned trial Court without lawful justification. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt.

3. None has come forward to advance arguments on behalf of the complainant. However, learned Addl. P.G for the State by supporting the impugned judgment has sought for dismissal of instant jail appeal by contending that the case of the appellant is distinguishable to that of acquitted co-accused Akram.

4. Heard argument and perused the record.

5. It was stated by complainant Umer Nawaz Khan that on the date of incident, on hearing of commotion and fire shot reports, he went running to the place of incident from his house and noticed the appellant and co-accused Akram causing fire shot injuries to his brother Afsar Khan and then fled away, his brother Afsar Khan died of such injuries, on his way to Jinnah Hospital, Karachi. On asking, the complainant was fair enough to state that he heard fire shot reports, when was available at his house and he did not see anyone causing fire shot injuries to the deceased. The delay in lodgment of FIR by 01 day, if is examined in that context then it reflects consultation. P.W Sir Nawaz Khan during course of his examination has stated that he seen the appellant and co-accused Akram causing fire shot injuries to the deceased. There is nothing in FIR or in evidence of the complainant which may suggest that P.W Sir Nawaz Khan was with him at the time of incident. The 161 Cr.P.C statement of PW Sir Nawaz Khan as per SIO SIP Jameel Ahmed was recorded with delay of about 01 day to FIR. No plausible explanation to such delay is offered by the prosecution. On asking it was stated by PW Sir Nawaz Khan that 2/3 bullets hit to the deceased. It is contrary to the postmortem report on the dead body of the deceased, prepared by medical officer Dr. Siri Chand, which suggests that the deceased was found sustaining one injury on his head (entry and exit). In that situation, no much reliance could be placed upon evidence of P.W Sir Nawaz Khan being doubtful in its character. Even otherwise, in inquest report which is prepared by ASI Shakeel Khan and was attested by the complainant and PW Sir Nawaz Khan, it is written at column No.17 that the deceased was fired at by unknown culprits. I.O SIP Muhammad Jameel Akhtar on asking was fair enough to admit that he could not find any eye witness to the incident. This also goes to suggest that the incident was unseen, surprisingly, on the basis of same evidence co-accused Akram has been acquitted while the appellant has been convicted by learned trial Court mainly for the reason that the empties secured from the place of incident were found matched with the pistol allegedly secured from him, ignoring the fact that the very memo of recovery of empties was found doubtful, as same, as per the complainant was prepared by the police at P.S Peerabad. 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 too is found entitled.

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 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.”

8. 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”.

9. 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 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 learned trial Court and he shall be released forthwith, if not required to be detained in any other custody case.

11. Above of the reasons of short order dated 01.09.2022, whereby the instant jail appeal was allowed.

JUDGE