IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA.

Criminal Appeal No. S –68 of 2019

Appellant               :                         Dildar s/o Wazeer @ Dadan Khoso

Through Mr.Habibullah Ghouri, Advocate.

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

Date of hearing       :                       11-05-2023.

Date of decision      :                       11-05-2023.

JUDGMENT

IRSHAD ALI SHAH, J;- It is alleged that the appellant with rest of the culprits after having formed an unlawful assembly and in prosecution of its’ common object, committed murder of Shahan by causing him fire shot injury, for that the present case was registered. Appellant, co-accused Wazir alias Dadan and Qurban were charged for the said offence which they denied and the prosecution to prove the same, examined complainant Mst.Sehat Khatoon and her witnesses and then closed its side. The appellant and the said co-accused during course of their examination under Section 342 Cr.PC denied the prosecution’s allegation by pleading innocence; they did not examine anyone in their defence or themselves on oath. On conclusion of trial, co-accused Wazir alias Dadan and Qurban were acquitted while the appellant was convicted U/S.302(b) PPC and sentenced to undergo imprisonment for life and to pay compensation of Rs.10,00,000/- to the legal heirs of the deceased and in default whereof, to undergo simple imprisonment for 12 months; he without defining the penal section was further convicted and sentenced to undergo rigorous imprisonment for three years and  to pay fine of Rs.10,000/- and in default whereof to undergo simple imprisonment for five months. Both the sentences were directed to run concurrently with benefit of Section 382-B Cr.PC, by learned 4^th Additional Sessions Judge, Dadu, vide judgment dated 28.08.2019, which is impugned by the appellant before this Court by preferring the instant criminal appeal.

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; the FIR has been lodged with delay of about one day; there was conflict between medical and ocular evidence and on the basis of same evidence, co-accused Wazir alias Dadan and Qurban have been acquitted by learned trial Court. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt.

3.         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 the instant criminal appeal by contending that at the pointation of appellant has also been secured the crime weapon and the prosecution has been able to prove its case against him beyond shadow of doubt.

4.         Heard arguments and perused the record.

5.         It was stated by the complainant and PW Misri that on 03.10.2017, when, they, deceased Shahan, and other inmates were available in their house, there came the appellant and others, out of them, appellant at the instance of absconding accused Lashkri, in order to satisfy his grudge with him on exchange of harsh words, on fish hunting, fired at Shahan, who by sustaining such fire fell down and died; the appellant and others then made their escape good by making fires in air to create harassment; they related the incident to police and then lodged formal FIR of the incident  on 04.10.2017 with P.S, Boriri, after funeral/burial ceremony of the deceased; it was with delay of about one day to the incident. Contrary to them, it was stated by medical officer Dr. Abdul Jabbar that the deceased died on account of sustaining injury on his abdomen and probable time between injury and his death was about half an hour. On asking, it was inter-alia made clear by him that the injury may have been caused to the deceased through some other source and not by some fire arm. If it is believed to be so, then it belies the complainant and PW Misri that the deceased died after sustaining fire shot injury on his left leg and his death was instantaneous; such conflict could not be overlooked, same if is examined in light of one day delay in lodgment of FIR, could not be overlooked; it besides reflecting consultation/deliberation has put shadow of could on the version of complainant and PW Misri, therefore, they could hardly be relied upon to maintain conviction. PW Khan Muhammad who is alleged to be present at the place of incident has not been examined by the prosecution. 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. It was stated by I.O/ASI Abdul Razzaq that on 04.10.2017, he recorded FIR of the present case and then visited the place of incident and prepared such memo; the perusal whereof reveals that the dead body of the deceased at that time was found lying at the spot. How it was found lying at the spot on 04.10.2017 even after its’ burial/funeral ceremony on 03.10.2017 ? Obviously, something wrong has taken place in between which is not explained. It was stated by I.O/SIP Waheed Ali that on investigation, he apprehended the appellant, on inquiry he confessed before him to have committed the alleged incident. If for the sake of arguments, it is believed that such confession was actually made by the appellant before him; even then same in terms of Article 39 of Qanun-e-Shahdadkot Order, 1984 could not be used against him. It was further stated by him that on pointation of the appellant, he secured an unlicensed mouser of 30 bore with four live bullets from graveyard of village Vegi, Taluka Khairpur Nathan Shah, under memo. Such graveyard being public place was not in exclusive possession of the appellant; therefore, such recovery is to be adjudged with doubt. Even otherwise, no question with regard to such recovery has been put to the appellant during course of his examination under Section 342 Cr.PC, to have his explanation; therefore, the appellant could hardly be connected with such recovery. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove its case against the appellant beyond shadow of reasonable doubt and to such benefit, he is found entitled.

6.         In case of Mehmood Ahmed & others vs. the State & another           (1995 SCMR-127), it was observed the Apex Court that;

“Delay of two hours in lodging the FIR
in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate”.   

7.         In case of Sardar Bibi and others Vs. Munir Ahmed and others       (2017 SCMR-344), it was held by 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 Imtiaz alias Taj Vs. The State and others (2018 SCMR-344), it has been held by the Apex Court that;

“The law is settled that a piece of evidence or a circumstance not put to an accused person at the time of recording his statement under section 342 Cr.PC, cannot be considered against him and, thus, no corroboration to the ocular account was forthcoming on this score”.

9.         In the case of Muhammad Mansha Vs. The State (2018 SCMR 772),     it has been held by the 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".

10.       In view of the 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 offence for which he was charged/tried/convicted and sentenced by learned trial Court, he shall be released forthwith, if not required to be detained in some other case.

11.       The instant criminal appeal is disposed of accordingly.

JUDGE .