IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Jail Appeal No.S-30 of 2022

Appellants:                   1). Tameer Shah s/o Aman Shah Syed,

2). Inam Shah s/o Sharif Shah Syed,

Through M/S. Asif Ali Abdul Razzak Soomro, Faiz Muhammad Larik & Zafar Ali Malghani, Advocates.

Complainant:               Muhammad Ali Shah in person.

The State:                      Through Mr. Shewak Rathore, D.P.G,

Date of hearing:           25.07.2024

Date of decision:           29.07.2024

JUDGMENT

IRSHAD ALI SHAH, J;- Facts, in brief, necessary for the disposal of instant criminal jail appeal are that the appellants allegedly with the rest of the culprits, after having formed an unlawful assembly and in the prosecution of its common object, fired and killed Muhammad Aslam Shah and then went away by insulting complainant Muhammad Ali Shah, for which the present case was registered. At trial, the appellants did not plead guilty to the charge, and the prosecution to prove the same, examined seven witnesses and then closed its side. The appellants in their statements recorded 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 completion of the trial, the appellants were convicted u/s.302(b) r/w Section 149 PPC and sentenced to undergo rigorous imprisonment for life as Tazir and to pay compensation of Rs.200,000/- each to the legal heirs of the deceased and in default in payment whereof, to undergo simple imprisonment for one year each, with the benefit of Section 382-B Cr.PC, by learned 1^st Additional Sessions Judge/MCTC, Jacobabad, vide judgment dated 29.08.2022, which they have impugned before this Court by preferring the instant criminal jail appeal.

2.       It is contended by learned counsel for the appellants that the appellants are innocent and have been involved in this case falsely by the complainant party only to satisfy its matrimonial dispute with them; the FIR of the incident has been lodged with a delay of about one day and the witnesses were chance, yet they have been believed by learned trial Court without lawful justification, therefore, the appellants are entitled to their acquittal by extending them the benefit of the doubt. In support of their contentions, they have relied upon cases of Abdul Rahim Vs. Ali Bux and 4 others (2017 PCr.LJ-228) and Sardar Bibi and another Vs. Munir Ahmed and others (2017 SCMR-344).

3.       Learned D.P.G for the State who is assisted by the complainant by supporting the impugned judgment has sought dismissal of the instant criminal jail appeal by contending that the prosecution has been able to prove its case against the appellants beyond the shadow of reasonable doubt and there is recovery of crime weapon from appellant Tameer Shah which on forensic examination has been found matched with one of the empty secured from the place of incident.

4.       Heard arguments and perused the record.

5.       It was inter-alia stated by complainant Muhammad Ali Shah that on 06.07.2020, he, PWs Muhammad Luqman Shah, Hakim Ali Shah, and deceased Muhammad Aslam Shah, were going by foot for their work, when reached Kakar Hotel, there at about 12.00 noon, came accused Inam Shah, Mazhar Shah, Baqa Muhammad Shah, Raheel Shah, and Tameer Shah with one unknown culprit; they to satisfy their grudge with them at the instigation of Inam Shah fired at deceased Muhammad Aslam Shah with their respective pistols, who by sustaining those fire-shots, fell on the ground, died and then was taken to Civil Hospital Jacobabad. The involvement of appellant Inam Shah in the commission of the incident based on the role of instigation only could reasonably be judged with doubt. It was further stated by the complainant that the police of P.S City Jacobabad, led by I.O/HC Parvez Ahmed came to the hospital and conducted the initial investigation of the case. The dead body of the deceased after postmortem was handed over to him for burial and he then lodged an FIR of the incident with P.S City Jacobabad; it was lodged on 07.07.2020 with a delay of about one day to the incident. No plausible explanation to such delay is offered by him therefore, it could not be overlooked. Before lodgment of the FIR, entry concerning the incident was kept in roznamcha by I.O/HC Parvez Ahmed Dasti under Entry No.12, dated 06.07.2020 at the instance of the complainant, surprisingly, it does not contain the name of any of the culprit involved in the incident. In such a situation, the lodgment of the FIR by the complainant with a delay of about one day disclosing the names of the culprits by assigning each and every injury to the deceased, prima facie, suggests deliberation and consultation, therefore, his evidence could hardly be relied upon to maintain conviction. PW Muhammad Luqman Shah is the brother of the complainant and the deceased, therefore, he had a reason to support the complainant in his version, which he attempted to do; obviously, he is a resident of Osta Muhammad Balochistan; he has not explained his presence at Jacobabad at the time of place of incident plausibly, therefore, his evidence too could hardly be relied upon to base a conviction. PW Hakim Ali Shah has not been examined by the prosecution. The presumption that could be drawn from his non-examination without justification in terms of Article 129(g) of Qanun-e-Shahadat Order, 1984, would be that he was not going to support the case of the prosecution. The evidence of Tapedar Kamil is only to the extent that he prepared a sketch of vardat, his evidence is of little help to the case of prosecution. The evidence of Dr. Ram Chand is only to the extent that he conducted the postmortem on the dead body of the deceased. The death of the deceased being unnatural is not disputed by anyone. It was stated by I.O/SIP Sikandar Ali that on the investigation of the case, he recorded 161 Cr.PC statements of the witnesses, apprehended appellant Tameer Shah and secured from him an unlicensed T.T pistol, allegedly used by him in the commission of the incident under memo, which was prepared by him in the presence of Mashirs PWs PC Liaquat Ali and PC Umed Ali. PW/Mashir PC Liaquat Ali has supported the said I.O/SIP to the extent of the arrest of appellant Tameer Shah and the recovery of an unlicensed pistol from him. It was further stated by him that he then dispatched the pistol secured from appellant Tameer Shah to the Forensic Expert for its examination; it was found matched with one of the empty secured from the place of incident. It was a joint dispatch, those ought to have been sent to the Forensic Expert for their examination separately to maintain transparency, which has not been done, therefore, such omission on the part of the said I.O/SIP could not be overlooked. If for the sake of arguments, it is believed that there was recovery of the crime weapon from appellant Tameer Shah, even then such recovery is not enough to maintain conviction against him too, when the evidence on ocular premises is proved doubtful and untrustworthy. The appellants in their statements recorded under section 342 Cr.PC have pleaded innocence; such a plea on their part could not be ignored in the circumstances of the present case.

6.       The discussion involves a conclusion that the prosecution has not been able to prove its case against the appellants beyond the shadow of a reasonable doubt and they are found entitled to such benefit.

7.       In the 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”.

8.       In the case of Muhammad Jamil vs. Muhammad Akram and others (2009 SCMR-120), it has been held by the Hon’ble 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 the case of Muhammad Javed vs. The State (2016 SCMR 2021), it has been held by the Hon’ble Apex Court that;

“….although a report of the Forensic Science Laboratory was received in the positive in respect of matching of the firearm recovered from the appellant's custody with a crime-empty secured from the place of occurrence yet the investigating officer (PW9) had clearly acknowledged before the trial court that the crime-empty had been sent to the Forensic Science Laboratory on the day when a carbine had been recovered from the custody of the appellant.”

10.     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".

11.     Having discussed above, the conviction and sentence awarded to the appellants by way of impugned judgment are       set-aside and they are acquitted of the charged offence and to be released forthwith, if are not required to be detained in any other custody case.

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

                 J U D G E