IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Jail Appeal No.S-49 of 2021

Appellants Muhammad Nawaz son of Lal Muhammad and Ghulam Mustafa son of Mir Muhammad both bycaste Magsi through Mr. Rukhsar Ahmed Junejo advocate.

The Complainant. Through Mr. Shafique Ahmed Leghari advocate.

The State Through Mr. Aftab Ahmed Shar, Additional Prosecutor General.

Date of hearing 06-11-2023

Date of decision 06-11-2023

J U D G M E N T

IRSHAD ALI SHAH, J. It is alleged that the appellants with rest of the culprits after having formed an unlawful assembly and in prosecution of its common object caused hatchets injuries to complainant Abdul Sattar, Muhammad Mithal, Dhani Bux and Abdul Hameed with intention to commit their murder; Muhammad Mithal died of such injuries, for that the present case was registered. At trial, the appellants and co-accused Lal Muhammad, Pervaiz, Noor Muhammad, Nisar and Muhammad Ibrahim were charged for the said offence, which they denied. The prosecution in-order to prove the same, examined in all seven witnesses and then closed its side. On conclusion of trial co-accused Lal Muhammad, Pervaiz, Noor Muhammad, Nisar and Muhammad Ibrahim were acquitted, while the appellants were convicted u/s 302 (b) PPC and sentenced to undergo imprisonment for life as Ta’zir and to pay compensation of Rs. 200,000/- (Two las) each to the legal heirs of the said deceased; the benefit of section 382(b) Cr.P.C was denied to the appellants for the reason that they have never remained in jail by learned Ist Additional Sessions Judge/(MCTC-I) Sukkur vide judgment dated 22-06-2021, which they have impugned before this Court by preferring the instant Crl. Jail Appeal.

2. It is contended by learned counsel of the appellants that the appellants being innocent have been involved in this case falsely by the complainant party in order to satisfy with them its dispute over landed property and on the basis of same evidence five of the co-accused have already been acquitted by learned trial Court; therefore, the appellants are entitled to their acquittal by extending them benefit of doubt. In support of his contention, he relied upon case of Muhammad Imran Vs. The State (2020 SCMR 857).

3. Learned APG for the State and learned counsel for the complainant by supporting the impugned judgment have sought for dismissal of instant Crl. Jail Appeal by contending that the case of the appellants is distinguishable to that of the above named acquitted accused.

4. Heard arguments and perused the record.

5. It was stated by complainant Abdul Sattar and PW Dhani Bux that on 16-11-2018 they, deceased Muhammad Mithal and PW Abdul Hameed were working in their field, there at about 2-30 pm time, came the appellants and above named co-accused; thereafter at the instigation of accused Lal Muhammad, the appellants caused hatchets injuries to Muhammad Mithal on his head while they and PW Abdul Hameed were caused hatchets injuries by accused Noor Muhammad, Nisar and others; on their cries the co-villagers came running, while appellants and others fled away. No co-villager is examined. It was further stated by them that they went at PS Salehpat, their injuries were noticed and then they were referred to Taluka Hospital Rohri and then to Civil Hospital Sukkur for treatment of their injuries and certificate, Muhammad Mithal was referred to Chandka Medical Hospital Larkana, he died of such injuries there on 19-11-2018; they brought his dead body and after post mortem, it was buried and then they lodged report of the incident with PS Salepat. It was lodged on 20-11-2018; it was with delay of four days to the incident and one day to actual death of the deceased. Such delay could not be overlooked. If narration made by the complainant and PW Dhani Bux is believed to be true then deceased Muhammad Mithal has sustained two injuries on his head, those obviously have been attributed by them to the appellants. It was stated by medical officer Dr. Pervaiz Akhtar that deceased Muhammad Mithal was found sustaining single injury on right side parietal region of his skull. Memo of injuries prepared by HC Malik Dino also speaks of single injury to the deceased on his head. Who amongst the appellants actually caused that single injury to the deceased, it is not clear. On asking it was stated by PW Dhani Bux that his 161 Cr.P.C statement was recorded by the police on 21-11-2018; it was with delay of one day even to lodgment of FIR. No plausible explanation to such delay is offered. PW Abdul Hameed on medical examination was sustaining injuries with some hard blunt substance. It is contrary to the narration made by the complainant and PW Dhani Bux, who insisted that he too was caused injury with hatchet. Probably for this reason, he was not examined by the prosecution under the deception that he is unable to make statement. Anyway, benefit of his non-examination could only be resolved in favour of the appellants. It was stated by I.O/ASI Sain Dad that on investigation, he visited the place of incident, prepared such memo; obtained the clothes of the deceased, prepared such memo and then the investigation of the case was transferred to I.O/SIP Yasir Khoso, he too has not been examined by the prosecution. It was stated by I.O/Inspector Shoukat Ali Arain that on investigation he found appellant Ghulam Mustafa and co-accused Muhammad Ibrahim as innocent and placed their names in column No.II of the charge sheet. Recovery of the hatchet from the place of incident could hardly be made a reason to maintain the conviction against the appellants when evidence of the witnesses against them has been found to be doubtful and untrustworthy. By awarding no punishment to the appellants for offence punishable u/s 324, 504, 148 PPC, they impliedly have been acquitted for such allegations even by learned trial Court. The appellants in their statements recorded u/s 342 Cr.P.C have denied the prosecution’s allegation by pleading innocent by stating that they have been involved in this case falsely by the complainant only to satisfy their dispute with them over landed property. On the basis of same evidence, five of the co-accused have been acquitted by learned trial Court, while the appellants have been convicted probably under influence of the counter version of the incident, ignoring the fact that the initial burden to prove its case lies upon the prosecution.

6. The conclusion which could be drawn of the above discussion would be that the prosecution has not been able to prove its case against the appellants too beyond shadow of doubt and to such benefit, they too are found entitled.

7. In case of Mehmood Ahmed & others vs. the State & another (1995 SCMR-127), it has been held by 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”.

8. In case of Muhammad Jamil vs. Muhammad Akram and others (2009 SCMR 120), it has been held by the Apex Court that;

“When the direct evidence is disbelieved, then it would not be safe to base conviction on corroborative or confirmatory evidence.”

9. In case of Sardar Bibi and others vs. Munir Ahmed and others (2017 SCMR-344), it has been held by the 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”.

10. In case of Abdul Khaliq vs. the State (1996 SCMR 1553), it was observed by Hon’ble Court that;

“----S.161---Late recording of statements of the prosecution witnesses under section 161 Cr.P.C. Reduces its value to nil unless delay is plausibly explained.”

11. In the case of Muhammad Mansha vs. The State (2018 SCMR 772), it was 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".

12. In view of the facts and reasons discussed above, the conviction and sentence awarded to the appellants under impugned judgment are set aside, they are acquitted of the offence for which they were charged, tried, convicted and sentenced by learned trial Court, they shall be released forthwith, if not required to be detained in any other custody case.

13. Above are the reasons of short order of even date whereby the instant Criminal Jail Appeal was allowed.

J U D G E

Nasim/P.A