IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 37 of 2020

Appellant: Moula Bux through Ms. Abida Parveen Channer and Mr. Shamsher A. Khan advocates

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

Date of hearing: 28.09.2022

Date of judgment: 28.09.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant committed murder of Mst. Sher Bano and Mst. Aneesa were happened to be his mother and wife respectively by causing them fire shot injuries, for that he was booked and reported upon. After due trial, on two counts he was convicted under Section 302(b) PPC and sentenced to undergo imprisonment for life as tazir and to pay compensation of Rupees One Million to the legal heirs of each of the deceased with benefit of section 382-B Cr.P.C; all the sentences were ordered to run concurrently by learned Ist Additional Sessions Judge/MCTC Malir Karachi vide judgment dated 21.11.2021 which is impugned by the appellant before this Court by preferring the instant appeal from jail.

2. It is contended by learned counsel for the appellant that the appellant being innocent has been convicted and sentenced by learned trial Court on the basis of no evidence, therefore, he is entitled to his acquittal by extending him benefit of doubt.

3. None has come forward to advance arguments on behalf of the appellant. However, learned DPG for the state by supporting the impugned judgment has sought for dismissal of instant jail appeal by contending that on arrest from the appellant has been secured the pistol which he allegedly used in commission of incident.

4. Heard arguments and perused the record.

5. It was stated by complainant Haroon that on 24.04.2019, it was intimated to him by PW Abdul Haq that the appellant has fired at his mother and wife and they are being taken to hospital, on such information he went at the place of incident, there he came to know that both the injured have died of such injuries, he then reported the incident to the police on 25.04.2019. It was with delay of about one day. No plausible explanation to such delay is offered, which reflects consultation and deliberation. The evidence of the complainant even otherwise is not lending support to the case of prosecution, for the reason that he is not an eye witness of the incident. It was stated by PW Abdul Haq that he being neighbourer of the appellant on hearing of fire shot reports went outside of his house and found the appellant coming out of his house with his pistol, who then drove away on his motorcycle. On asking he was fair enough to say that he actually has not seen the appellant making fires at the deceased, which prima facie suggests that he is not eye witness to the incident. His evidence too lends no support to the case of prosecution. P.Ws Uzma, Bisma, Zakir, Dad Karim and Rahim Bux have not been examined by the prosecution, their non-examination could not be overlooked. As per I.O/ASI Habibullah on 25.04.2019, the appellant was apprehended on 25.04.2019 and from him was secured unlicensed pistol of 9mm bore, which he allegedly used in commission of incident. As per report of forensic expert it was delivered in his office on 29.04.2019. It was with delay of 04 days to its recovery. As per I.O/SIP Shahzad Hussain the appellant admitted before him that he has committed death of his mother and wife. If for the sake of arguments, it is believed that such statement was made by the appellant before IO/SIP Shahzad Hussain, even then same being inadmissible in evidence in terms of Article 39 of the Qunun-e-Shahadat Order, 1984 could not be used against him. In these circumstances, it would be hard to maintain conviction against the appellant on the basis of recovery of unlicensed weapon alone.

6. The conclusion which could be drawn of above discussion would be that the prosecution has not been able to prove the involvement of the appellant in this case beyond shadow of doubt.

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

10. The instant jail appeal is disposed of accordingly.

JUDGE