IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

( Criminal Jail Appeal No.D-38 of 2020 )

Before:

Mr. Justice Irshad Ali Shah.

Mr. Justice Arbab Ali Hakro.

Appellant: Abdul Qayoom @ Irfan s/o Allah Dino @ Majno

Through Mr.Asif Ali Abdul Razzak Soomro,

Advocate

Complainant: Barkat Ali s/o Qadir Bux Rozrani,

Through Mr.Javed Ali Soomro, Advocate.

The State: Through Mr. Ali Anwar Kandhro,

Addl.P.G, Sindh

( Crl.Revision Appln.No.D-16 of 2020 )

Applicant/Complainant: Barkat Ali s/o Qadir Bux Rozrani

Through Mr.Javed Ali Soomro, Advocate

Respondent No.1: Abdul Qayoom @ Irfan s/o Allah Dino @ Majno

Through Mr.Asif Ali Abdul Razzak Soomro,

Advocate

The State: Through Mr. Ali Anwar Kandhro,

Addl.P.G, Sindh

Date of hearing: 31.05.2023

Date of decision: 31.05.2023

JUDGMENT

IRSHAD ALI SHAH, J; It is case of prosecution that the appellant with rest of the culprits, after having formed an unlawful assembly and in prosecution of their common object, allegedly on account of failure of the complainant party to pay them ransom, committed murder of Abdul Majeed, Hazoor Bux and Jial Khan by causing them fire shot injuries and then went away by making aerial firing to create harassment, for that the present case was registered. On conclusion of trial, the appellant was convicted for the said offence and sentenced to undergo various terms of imprisonment spreading over life by learned Incharge Judge, Anti Terrorism Court, Shikarpur, vide judgment dated 19.11.2020, which he has impugned before this Court by way of instant Criminal Jail Appeal. A criminal revision application is also filed by complainant Barkat Ali for enhancement of the sentence awarded to the appellant.

2. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the complainant party on the basis of vicarious liability and evidence of the PWs being doubtful in its character has been believed by learned trial Court without lawful justification, therefore, the appellant is entitled to be acquitted of the charge by extending him benefit of doubt, which is opposed by learned Addl.P.G for the State and learned counsel for the complainant by contending that the prosecution has been able to prove its case against the appellant beyond shadow of doubt, who has already been dealt with leniently by learned trial Court, therefore, the sentence awarded to him needs to be enhanced with dismissal of his jail appeal.

3. Heard arguments and perused the record.

4. It is stated by complainant Barkat Ali and PW Azam Din that on the date of the incident, they, PW Tariq Hussain and the deceased were going to Ratodero on their two motorcycles, when reached at Nim Shakh turn, were confronted by the appellant and others, they were alighted from their motorcycles, then at the instigation of Allah Dino, accused Humayun, Muhammad Ali and Nisar fired at the deceased with their respective pistols; Abdul Majeed and Hazoor Bux died at the spot while Jial Khan died on his way to hospital; the appellant and others went away by making fires at them and in air to create harassment; then they reported the incident to police. It was reported to police on next date of the incident; such delay could not be overlooked. No fire shot hit to the complainant or any of his witness which is surprising. When, where and at what time the ransom was allegedly demanded by the appellant and others from the complainant party? It is not made known by the complainant or his witness. Such demand even otherwise was not reported to police by the complainant party, which has made allegation of demand of ransom by the appellant and others to be doubtful. As per medical officer Dr.Dayandas, the deceased were found sustaining the injuries which were caused to them with shot gun. By stating so, he belied the complainant and PW Azam Din that the deceased were caused fire shot injuries with pistols. PW Tariq Hussain has not been examined by the prosecution; the presumption 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. The evidence of Tapedar and Mashir is of little importance to improve the case of prosecution. DSP Abdul Samad Soomro who as per Investigating officer/Inspector Khalid Hussain being incharge of Joint Investigation Team has not been examined by the prosecution; his non examination has deprived the appellant to make use of his evidence which is against the principle of fair trial. The appellant in his statement recorded under Section 342 Cr.PC has alleged his involvement in present case at the hands of complainant party on account of old enmity and in order to prove such enmity, he has produced copy of FIR Crime No.08/2013, U/S.302, 337-H(ii), 506/2, 504, 114 148 & 149 PPC of P.S Ghulam, Shah, therefore, his involvement in the present case on the basis of no effective role in commission of the incident, if is seen in the light of above stated enmity appears to be doubtful.

5. 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”.

6. 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".

7. Having concluded 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, if not required to be detained in any other custody case.

8. The instant Criminal Jail Appeal is allowed while Crl.Revision Application for enhancement of sentence to the appellant on account of his acquittal having become infructuous is dismissed accordingly.

JUDGE