IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 662 of 2019

Appellant: Rafiq Ali through Mr. Arshad Riaz advocate

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

Date of hearing: 07.09.2022

Date of judgment: 07.09.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant, co-accused Nisar Ahmed and Nizamuddin in furtherance of their common intention committed murder of Hazoor Bux by causing him fire shot injuries, for that they were booked and reported upon. After due trial, co-accused Nisar Ahmed and Nizamuddin were acquitted while the appellant was convicted under Section 302(b) PPC and sentenced to undergo rigorous imprisonment for life and to pay Rupees Two Million as compensation 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 I-Additional Sessions Judge/MCTC, Malir Karachi vide judgment dated 18.10.2019, 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 matrimonial dispute with him; the FIR of the incident has been lodged with delay of about 03 days; it was unseen incident and on the basis of same evidence co-accused Nisar Ahmed and Nizamuddin have been acquitted while appellant has been convicted by learned trial Court without lawful justification. By contending so, he sought for acquittal for the appellant by extending him benefit of doubt. In support of his contentions, he relied upon cased of Notice of Police Constable Khizar Hayat son of Hadait Ullah on account of his false statement (PLD 2019 S.C 527) and Zaheer Din vs. The State (1993 SCMR 1628).

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 the instant appeal by contending that the case of appellant is distinguishable to that of acquitted accused and prosecution has been able to prove its case against him beyond shadow of doubt.

4. Heard arguments and perused the record.

5. The FIR of the incident has been lodged with delay of about 03 days, such delay having not been explained plausibly could not be overlooked, it is reflecting consultation and deliberation. It is stated by the complainant in his FIR specifically that it was co-accused Nisar Ahmed who actually has committed death of the deceased by causing him fire shot injuries. At trial, the complainant on asking was fair enough to admit that he was intimated about the incident by Zubair. PW Zubair in turn was fair enough to say that he was intimated about the incident by his cousin Qadeer Ahmed, who has not been examined by the prosecution. So is the case with PW Zulfiqar. In these circumstances, no much reliance could be place upon the evidence of the complainant and above said witnesses. As per I.O SIP Ali Murad no empty was secured from the place of incident and pistol was secured from co-accused Nisar Ahmed. The question put to the appellant in his statement recorded under Section 342 Cr.PC also suggests that it was co-accused Nisar Ahmed who actually fired and killed the deceased. As said above, co-accused Nisar Ahmed and Nizamuddin have been acquitted by extending them benefit of doubt while the appellant has been convicted and sentenced by the learned trial Court, on the basis of same evidence, only for the reason that he being first cousin of the deceased did not attend funeral ceremony of the deceased and has failed to prove his innocence in his defence. The failure of appellant to attend the funeral ceremony of the deceased could not be taken as conclusive proof of his guilt. None indeed could be convicted on the basis of his failure to prove his innocence in his defence. It is the prosecution which has to prove its case against the accused beyond shadow of doubt. In these circumstances, it could be concluded safely that the prosecution has not been able to prove the involvement of the appellant in the instant case beyond shadow of doubt and he too is found entitled for such benefit.

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 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”.

8. 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".

9. 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.

10. Above of the reasons of short order dated 07.09.2022, whereby the instant appeal was allowed.

JUDGE

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