IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Jail Appeal No.S-66 of 2019

Appellant:                    Saddam Hussain s/o Abdul Karim Bhutto Through Mr.Habibullah Ghouri, Advocate

The State:                      Through Mr. Ali Anwar Kandhro, Addl.P.G, Sindh

Complainant:               Through Mr. Abdul Rehman Bhutto, Advocate.

Date of hearing:           20.03.2023

Date of decision:           20.03.2023

JUDGMENT

IRSHAD ALI SHAH, J; The facts in brief necessary for disposal of instant criminal jail appeal are that the appellant with rest of the culprits allegedly after having formed an unlawful assembly and in prosecution of its common object, committed murder of Lal Muhammad by causing him fire shot and hatchet injuries, for that the present case was registered. On usual investigation, the appellant, co-accused Din Muhammad and Abdul Karim were challaned by the police; they denied the charge and the prosecution to prove it examined in all eight witnesses and then closed its side. The appellant and said co-accused in their statements recorded under Section 342 Cr.PC denied the prosecution’s allegation by pleading innocence; they did not examine themselves on oath; however, they examined Hussain Bux and Muhammad Yousif in their defence. On conclusion of trial,         co-accused Din Muhammad and Abdul Karim were acquitted while the appellant was convicted under Section 302(b) PPC and sentenced to undergo imprisonment for life and to pay compensation of Rs.100,000/- to the legal heirs of the deceased and in default whereof, to undergo S.I for six months, with benefit of Section 382-B Cr.PC by learned 1^st Additional Sessions Judge/MCTC, Kandhkot, which he has impugned before this Court by preferring the instant criminal jail 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 police at the instance of complainant; it was night time incident therefore, the identity of the appellant was doubtful; the FIR is lodged with delay of about 17 hours and no injury with sharp cutting object the deceased was found sustaining on his medical examination and on the basis of same evidence co-accused Din Muhammad and Abdul Karim have been acquitted, therefore, the appellant is entitled to same benefit. By contending so, he sought for sought for acquittal of the appellant by extending him benefit of doubt. In support of his contentions, he relied upon cases Ghulam Abbas and others Vs. The State and others (2021 SCMR-23) and Muhammad Arif Vs. The State             (2019 SCMR-631).

3.         Learned Addl. P.G for the State  and learned counsel for the complainant by supporting the impugned judgment have sought for dismissal of the instant criminal jail appeal by contending that the prosecution has been able to prove its case against the appellant beyond shadow of doubt.

4.         Heard arguments and perused the record.

5.         It was stated by complainant Ameer Bux and PW Zulfiqar Ali that on the night of incident when they, PW Ali Gohar and the deceased were sleeping in their house, there came the appellant and others, they were identified by them properly under the light of bulb then at the instigation of co-accused Abdul Karim, absconding accused Akhtiar Ali fired at the deceased, who by sustaining such fire fell on the ground he then was caused hatchet injury on his neck by the appellant; all of them then made their escape good; early in the morning they took the dead body of the deceased to P.S Ghouspur; it then was referred to hospital by the officials at P.S Ghouspur, without recording FIR or entry in roznamcha with regard to the incident; such omission on part of the police could not be overlooked. It was further stated by them that the dead body of the deceased after postmortem was given back to them, it was buried and then they reported the incident to police formally. On asking, it was stated by medical officer Dr. Syed Aijaz Ali Shah that injury on right side neck of the deceased, which is attributed to the appellant might have been sustained by him on account of his fall on the earth. By stating so, he belied the complainant and PW Zulfiqar Ali that the deceased was caused hatchet injury by the appellant on right side of his neck. PW Ali Gohar has not been examined by the prosecution. The inference which could be drawn of his non examination under Article 129(g) of Qanun-e-Shahadat Order, 1984 would be that he was not going to support the case of prosecution. On asking, it was admitted by I.O/ASI Gulsher Ahmed that all the memos and FIR of the present case were written by WPC. If it was so, then the role played by him in investigation of present case was only to the extent of table. No recovery of any sort has been made from the appellant. In these circumstances, it could be concluded safely that the prosecution has not 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 Imran Ashraf and others vs. The State (2001 SCMR-424), it has been observed by the Hon’ble Apex Court that;

“Section 154, Cr.P.C. lays down procedure for registration of an information in cognizable cases and it also indeed gives mandatory direction for registration of the case as per the procedure. Therefore, police enjoys no jurisdiction to cause delay in registration of the case and under the law is bound to act accordingly enabling the machinery of law to come into play as soon as it is possible and if first information report is registered without any delay it can help the investigating agency in completing the process of investigation expeditiously”.

7.         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".

8.         In view of facts and reasons discussed above, the conviction and sentence awarded to the appellant by way of impugned judgment are set-aside, consequently, he is acquitted of the charge, he shall be released forthwith, if is not required to be detained in any other custody case.

         JUDGE