IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA.

Criminal Jail Appeal No. D–26 of 2019

Crl.Conf.Case No.D-09 of 2019

Before:

Mr. Justice Irshad Ali Shah.

Mr. Justice Arbab Ali Hakro.

Appellant: Siraj Ahmed s/o Mian Taj Muhammad Mekan

Through Mr.Muhammad Afzal Jagirani, Advocate.

Complainant: Mian Atta Rasool Mekan through

Mr. Asif Ali Abdul Razzak Soomro, Advocate

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

Date of hearing: 02-05-2023.

Date of decision: 09-05-2023.

JUDGMENT

ARBAB ALI HAKRO, J;- It is the case of prosecution that the appellant with aid and abetment of rest of the culprits, allegedly committed murder of Atta Muhammad by causing him fire shot injuries, for that the present case was registered. At trial, the appellant, co-accused Taj Muhammad and Gul Muhammad were charged for the said offence; they denied the same and the prosecution to prove it, examined complainant Atta Rasool and his witnesses and then closed its’ side. The appellant in his statement recorded U/S.342 Cr.PC has mainly admitted the prosecution’s allegation against him; however, co-accused Taj Muhammad and Gul Muhammad denied the same by pleading their innocence. None of them examined any one in their defence or themselves on oath to disprove the prosecution’s allegations against them. On conclusion of trial, co-accused Taj Muhammad and Gul Muhammad were acquitted while the appellant was convicted under Section 302(b) PPC and sentenced to death to be hanged by neck till his death and was also directed to pay compensation of Rs.300,000/- to legal heirs of the deceased and in default whereof to undergo simple imprisonment for six months, by learned 1^st Additional Sessions Judge/MCTC, Qamber, vide judgment dated 25.05.2019, which he has impugned before this Court by preferring the instant criminal jail appeal. A reference in terms of Section 374 Cr.PC has also been made by learned trial Court for confirmation of death sentence to the appellant.

2. It is contended by learned counsel for the appellant that he being innocent has been involved in this case falsely by the complainant party in order to satisfy its dispute with him over shops; the evidence of the PWs was doubtful; the confessional statement of the appellant was untrue; the pistol has been foisted upon the appellant and co-accused on the basis of same evidence have already been acquitted by learned trial Court, therefore, the appellant is entitled to his acquittal by extending him benefit of doubt or alternatively death sentence awarded to him to be modified with imprisonment for life by considering the mitigating circumstances of the case.

3. Learned Addl.P.G for the State and learned counsel for the complainant have sought for dismissal of the instant criminal jail appeal and confirmation of death sentence to the appellant by contending that it was he, who has committed death of deceased by causing him fire shot injuries; on arrest from him has been secured the incriminating pistol; he has confessed his guilt before the Magistrate by making judicial confession, has made no denial to the allegation against him during course of his examination U/S.342 Cr.PC and there is no mitigating circumstance calling for modification of his death sentence to imprisonment for life.

4. Heard arguments and perused the record.

5. It was stated by complainant Atta Rasool that few days back to the incident, co-accused Taj Muhammad and Gul Muhammad exchanged harsh words with his father Atta Muhammad, on dispute over shops; on the date of incident, he, his father Atta Muhammad, PWs Noor Muhammad and Noorullah when were sitting in a room at Dargah of Mian Ghulam Siddique at Shahdadkot, there came the appellant with a pistol and caused fire shot injuries to his father Atta Muhammad by saying that he is disputed with his (appellant) father over the shops; his father Atta Muhammad died of such injuries at the spot and the appellant then made his escape good. The incident was reported to police; his formal FIR was recorded by I.O/ASI Zulfiqar Ali. The evidence of complainant takes support from evidence of PWs Noorullah and Noor Muhammad and all of them have stood by their version on all material points, despite lengthy cross examination by learned counsel for the appellant and others; they could not be disbelieved under the deception that they either are related inter-se or on friendship with each other. Indeed, they were having no reason to have involved the appellant in this case falsely at the cost of life an innocent person; their evidence is transpiring confidence. On investigation, the appellant was apprehended and from him was secured pistol of 30 bore with magazine containing two live bullets of same bore, which allegedly was used by him in commission of incident, by I.O/ASI Zulfiqar Ali; he has not been examined by the prosecution, on account of his death; it was natural act, therefore, his non examination may not benefit the appellant. The further investigation of the case was conducted by I.O/ASI Muhammad Khalid, on investigation, he got recorded the judicial confession of the appellant whereby he confessed his guilt by inter-alia stating that the deceased was visiting the house of his parents at night time, therefore, he committed his death under the command of “Almighty Allah”. Whatever, he stated while making such confession inter-alia takes support from evidence of PW Mr.Muhammad Islam-ul-Haq, the Magistrate, having jurisdiction, who has recorded the same; it is appearing to be true and voluntarily and is supporting the case of prosecution. In end of trial, during course of his examination, the appellant has made no denial either for committing death of the deceased by causing him fire shot injuries, on point of recovery of incriminating pistol from him or making judicial confession. In these circumstances, the learned trial Court was right to conclude that the prosecution has been able to prove its case against the appellant beyond shadow of doubt and by making such conclusion has rightly awarded him death penalty, which is not calling for any modification.

6. The case of the appellant is distinguishable to that of acquitted co-accused; they have not actively participated in commission of the incident and on investigation were also found to be innocent even by the police, therefore, their acquittal is not enough to earn acquittal for the appellant who is fully involved in commission of the incident.

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

“5. 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 unofalsus 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 the facts and reasons discussed above, it is concluded safely that no case for interference with the impugned judgment is made out by this Court by way of criminal jail appeal; it is dismissed and the death sentence awarded to the appellant by learned trial Court is confirmed.

9. The instant criminal jail appeal and reference are disposed of accordingly.

JUDGE