IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

 

 

Criminal Jail Appeal No.S-51 of 2019

 

                             

 

Appellant:                      Liaquat Ali s/o Ghulam Shabir Buledi,

Through Mr.Ahmed Bux Abro, Advocate

 

 

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

 

 

Date of hearing:            28.04.2023

 

Date of decision:           28.04.2023

 

 

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 Rasool Bux by causing him fire shot injuries, for that he was booked and reported upon by the police. On conclusion of trial, he was convicted             U/S. 302(b) PPC and sentenced to undergo rigorous imprisonment for life and to pay compensation of Rs.300,000/- to the legal heirs of the deceased and in default whereof, to undergo simple imprisonment for six months, with no benefit of Section 382-B Cr.PC, by learned 1st Additional Sessions Judge/MCTC, Qamber, vide judgment dated 30.05.2019, which he has impugned before this Court by way of instant criminal jail 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 of the incident has been lodged with unexplained delay of about four days to the incident and the evidence of the PWs being doubtful in its character has been believed by learned trial Court without assigning cogent reasons, therefore, the appellant is entitled to be acquitted 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 jail appeal by contending that the prosecution has been able to prove its case against the appellant beyond shadow of reasonable doubt and on arrest from him has been secured the pistol which he allegedly used in commission of the incident.

4.       Heard arguments and perused the record.

5.       It was stated by complainant Liaquat Ali and PW Faizal that on 18.05.2015, they, deceased and PW Sadaqat Ali went at the hand pump to take bath at the land of Buledi’s, when the deceased was taking bath, there came the appellant and others who overpowered them and then fired at the deceased to satisfy their grudge with him over passage; the deceased after sustaining fire shot injuries died at the spot. In that respect they are belied by Dr.Tasweer Hussain, as per him, time between injuries and death might be about 30 minutes. If it is believed to be so, then it creates doubt about availability of the complainant and PW Faizal at the place of incident. It was further stated by them that they intimated the incident to police on cell phone; such intimation was recorded by I.O/ASI Gulzar Ali under roznamcha entry No.11, dated 18.05.2015 of P.S Miro Khan; surprisingly it does not contain name of any of the culprit. It was further stated by them that on 21.05.2015, after burial and attending funeral rituals of the deceased they lodged formal FIR of the incident at P.S Miro Khan; it was with delay of about four days to the incident. No plausible explanation to such delay is offered which prima facie suggests that it has been lodged after due deliberation and consultation. On asking, it was stated by the complainant he did not disclose the names of culprits involved in the incident to I.O/ASI Gulzar Ali at the time when he was preparing danistnama on the dead body of the deceased. He in that respect was belied by PW Faizal by stating that they disclosed the names of culprits to I.O/ASI Gulzar Ali at the spot. Such inconsistency between their evidence, if is examined in the light of four days delay in lodgment of the FIR, prima facie suggests that the complainant party was not certain about the identity of the culprits involved in the incident, therefore, it would be hard to rely upon evidence of the complainant and PW Faizal to maintain conviction. PW Sadaqat Ali has not been examined by the prosecution. His non-examination without any reason in terms of Article 129(g) of Qanun-e-Shahadat Order, 1984, suggests that he was not going to support the case of prosecution. As per I.O/ASI Mashooq Ali, the appellant was apprehended by him and on enquiry, led him to “Khabar” tree in a graveyard, there-from he took out a pistol allegedly used by him in commission, which he secured under memo prepared at the spot in presence of PWs/mashirs Ali Akbar and Riaz Buriro. PW/Mashir Ali Akbar on account of his failure to support case of prosecution has been declared hostile while PW/Mashir Riaz Buriro has attempted to support such recovery. His evidence could hardly be relied upon being interested person, as he had made himself available to police for utility of his services at the time of every need. Nothing has been brought on record which may suggest that the pistol allegedly secured from the appellant has been subjected to forensic test, therefore, the alleged recovery of pistol which even otherwise has been effected from the place which was not found to be in exclusive possession of the appellant, could hardly improve the case of prosecution. In these circumstances, it would be safe to conclude that the prosecution has not 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 Imran Ashraf and others vs. The State (2001 SCMR-424), it has been observed by the 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 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 offence, for which he was charged, tried, convicted and sentenced by learned trial Court; he shall be released forthwith, if is not required to be detained in any other custody case.

9.       The instant criminal jail appeal is disposed of accordingly.

 

            JUDGE