IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 315 of 2020

Appellant: Nawaz through Mr. Abdullah Nizamani advocate

The State: Through Mr. Khadim Hussain, Additional Prosecutor General Sindh

Date of hearing: 25.10.2022

Date of judgment: 25.10.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant with rest of the culprits committed murder of Muhammad Uris by causing him hatchet injury and then hidden his dead body in heap of palal in order to cause disappearance of evidence to save themselves from legal consequences, for that the present case was registered. After due trial, co-accused Abdul Khaliq, Ghulam Mustafa, Abdullah Khan, Sultan and Saleh were acquitted, while appellant was convicted u/s 302(b) PPC and sentenced to undergo imprisonment for life and to pay compensation of Rs.100,000/- to the legal heirs of deceased and in default whereof to undergo simple imprisonment for 06 months with benefit of section 382(b) Cr.P.C by Additional Sessions Judge Sujawal vide judgment dated 20.09.2017, 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 has been convicted and sentenced by learned trial Court 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 on arrest from the appellant has been secured the hatchet which he used in commission of the incident and cell phone of the deceased.

3. Heard arguments and perused the record.

4. The FIR of the incident has been lodged with delay of about 03 days; such delay having not been explained plausibly could not be ignored. Complainant Lehar and P.W Gul Nawaz on asking were fair enough to admit that they are not eye witnesses to the incident. So is the case with P.W Gul Hassan, therefore, their evidence could hardly lend support to the case of prosecution. The involvement of the appellant in commission of incident is based mainly on the statement of P.W Mamoon, who happened to be cousin of the complainant. As per him, the appellant disclosed to Sultan Leghari, in his presence that he has committed murder of the deceased, yet he is not being named by the complainant party. He was fair enough to admit that his 161 Cr.P.C statement was recorded on 08.01.2013, it was with delay of about 12 days to the incident. Such delay could not be overlooked which has put him within the ambit of ‘managed witness’. If for the sake of arguments, it is believed that such disclosure was actually made by the appellant even then same could hardly be used against him being uncorroborated and suspicious in nature. P.W Sultan Leghari has not been examined by the prosecution. P.W Noor Muhammad though was called to be examined by having recourse under Section 540 Cr.P.C, was given by the prosecution. The inference which could be drawn of his non-examination under Article 129(g) of the Qanun-e-Shahadat Order, 1984 would be that he was not going to support the case of prosecution. As per IO/SIP Ghulam Sarwar, on investigation, he apprehended the appellant and secured from him the hatchet, which he allegedly in commission of incident and cell phone of the deceased. Surprisingly, the cell phone of the deceased was not subjected to identification through the complainant before the Magistrate. On asking he was fair enough to admit that hatchet and cell phone could be purchased from the market. Perhaps in that context, it is contended by learned counsel that those have been foisted upon the appellant by the police at the instance of the complainant party. As per mashirnama of recovery, the hatchet allegedly secured from the appellant was not found stained with blood. In these circumstances, it could be concluded safely that the prosecution has not been able to prove the involvement of the appellant in commission of incident beyond shadow of doubt.

5. 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…...”

6. 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.”

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, 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. Instant jail appeal is disposed of accordingly.

JUDGE