IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 81 of 2017

Appellant: Muhammad Sufiyan through Mr. Sami Ahsan advocate

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

Date of hearings: 14.09.2022 and 19.09.2022

Date of judgment: 26.09.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant and others in prosecution of their common object committed death of Muhammad Hanif by causing him fire shot injuries when he was sitting outside of his house, for that the present case was registered.

2. The appellant after due trial was convicted for offence punishable under Section 302(b) PPC and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.500,000/- payable to the legal heirs of the deceased, as compensation and in default whereof to undergo simple imprisonment for 06 months with benefit of section 382-B Cr.P.C, by learned II-Additional Sessions Judge Karachi East, vide judgment dated 12.01.2017, which is impugned by the appellant before this Court by way the instant jail appeal.

3. 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 grudge with him; the pistol has been foisted upon him; no finger print test was conducted on pistol so recovered; co-accused Muhammad Sultan, Muhammad Yousuf and Muhammad Haroon have already been acquitted by learned trial Court and evidence of prosecution’s witnesses being doubtful in its character has been believed by learned trial Court without lawful justification, therefore, the appellant is entitled to his acquittal by extending him benefit of doubt, who even otherwise, is at the verge of completion of his jail term.

4. 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 accused and prosecution has been able to prove its case against the appellant beyond shadow of doubt.

5. Heard arguments and perused the record.

6. It was stated by complainant Bilal that on the date of incident when he, his wife Mst. Fatima Bibi, his son Muhammad Hanif and his wife Mst. Salma were sitting outside of their house, there came three person(s) on two motorcycles, they fired and injured his son Muhammad Hanif; amongst them, the appellant was apprehended at the spot together with the pistol, on account of slip of his motorcycle, he was maltreated by Mohallah people, while rest of the culprits made their escape good; Muhammad Hanif was taken to Patel Hospital for treatment, there he died of such injuries; the custody of the appellant together with pistol secured from him, was taken by the police and then he then was challaned in the present case accordingly. The evidence of the complainant takes supports from the evidence of P.Ws Babu, Abdul Shakoor, Noor Muhammad and Muhammad Sarwar and they have stood by their version on all material points despite lengthy cross-examination, they being natural witnesses to the incident could not be disbelieved on account of few inconsistencies in their evidence, which even otherwise, are irrelevant and immaterial to the case of prosecution. The pistol secured from the appellant, on forensic examination was found similar with the empties taken from the place of incident, which excludes the possibility of its foistation upon the appellant. Whatever is stated by the complainant and his witnesses takes support from ancillary evidence furnished by medical officer Dr. Shiraz Ali and I.O/SIP Iftikhar Ahmed, therefore, it would be hard to believe the plea of the appellant that he being innocent has been involved in this case falsely by the complainant party. The involvement of innocent person instead of real culprit is rare phenomenon in case like the present one. In these circumstances, learned trial Court was right to conclude that the prosecution has been able to prove its case beyond shadow of doubt, such a conclusion could not be defeated only for the reason that no finger print test on the pistol secured from the appellant was conducted and co-accused Muhammad Sultan, Muhammad Yousuf and Muhammad Haroon have already been acquitted by learned trial Court. Needless, to say that case of acquitted accused was distinguishable to that of appellant as none of them was apprehended at the spot.

7. In case of Muhammad Raheel @ Shafique v. State (PLD 2015 SC 145), it has been held by Hon’ble Court that:-

“5. It may be true that five co-accused of the appellant had been acquitted by the learned trial Court and their acquittal had subsequently been upheld by the High Court but at the same time it is equally true that the said acquitted co-accused had not been attributed any injury to any of the deceased and their roles alleged by the prosecution were merely secondary in nature. The prosecution had not been able to produce sufficient or convincing evidence before the learned trial court regarding the roles attributed to those accused persons and, thus, their acquittal may not by itself be sufficient to cast a cloud of doubt upon the veracity of the prosecution's case against the appellant who was attributed the fatal injuries to both the deceased. Apart from that the principle of falsus in uno falsus in omnibus is not applicable in this country on account of various judgments rendered by this Court in the past and for this reason too acquittal of the five co-accused of the appellant has not been found by us to be having any bearing upon the case against the appellant.”

8. In view of above, it is concluded safely that no case for making interference with the impugned judgment is made out, consequently the instant jail appeal fails and is dismissed accordingly.

JUDGE