IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Appeal No.S-96 of 2019

Appellant :  Ali Bux son of Nijawat Ali Bahalkani,

Through Mr.Asif Ali Abdul Razzak Soomro, Advocate

The State :  Through Mr.Muhammad Noonari, D.P.G

Date of hearing            :  27.08.2020                

Date of decision           :  27.08.2020                          

J U D G M E N T

IRSHAD ALI SHAH, J.- The appellant by way of instant appeal has impugned judgment dated 17.10.2019, rendered by learned 1^st Additional Sessions Judge/MCTC, Kandhkot, whereby he has been convicted and sentenced as under;

“Accused Ali Bux son of Nijawat Ali Bahalkani, is convicted under section 265-H(ii) Cr.PC for the offence punishable under section 302(b) PPC as Tazir & sentenced to imprisonment for life with fine of Rs.500,000/- (rupees Five Lac) which on recovery be deposited in government treasury under relevant head of account preferably to be consumed for the welfare of the orphan babies or in default he (accused) shall suffer one year more S.I. The accused is extended the benefit of section 382 (b) Cr.P.C”.

2.                Facts in brief necessary for disposal of instant appeal are that the appellant allegedly has committed Qatl-e-Amd of his daughter Mst.Zaheeran Khatoon, by causing her gunshot injuries, for that he was booked and reported upon by the police.

3.                At trial, the appellant did not plead guilty to the charge and the prosecution to prove it, examined in all seven witnesses and then closed its’ side.

4.                The appellant in his statement recorded u/s.342 Cr.PC denied the prosecution allegation by pleading innocence. He did not examine anyone in his defence but examined DWs Mst.Bashiran and Muhammad Ismail in his defence.

5.                It was inter-alia stated by the above said DWs in their evidence before learned trial Court that Mst.Zaeheeran Khatoon has died mistakenly after sustaining gunshot injuries at the hands of their servant Asif, when he was repairing the gun.

6.                On evaluation of evidence, so produced by the prosecution, the appellant has been convicted and sentenced as is detailed above, by learned trial Court by way of impugned judgment.

7.                It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police; there is no eye witness of the incident and the appellant has not been confronted with the recovery during course of his examination under section 342 Cr.PC.  By contending so, he sought for acquittal of the appellant. In support of his contentions, he has relied upon cases of Muhammad Ashraf alias Acchu Vs. The State (2019 SCMR-652), 2).  Muhammad Javed Vs. The State (2016 SCMR-2021) and 3). Mureed Hussain Vs. The State through Prosecutor General Sindh   (2014 SCMR-1689).

8.                Learned D.P.G for the State by supporting the impugned judgment has sought for dismissal of the instant appeal.

9.                I have considered the above arguments and perused the record.

10.              No relative of the deceased has come forward to lodge report of the incident with police, which appears to be significant. It has been lodged by HC Ghulam Qadir on behalf of the State. It has inter-alia been stated by the complainant and PW/PC Barkat Ali that on the date of incident, they came to know through spy information that the appellant has committed Qatl-e-Amd of his daughter Mst.Zaheeran Khatoon on account of his domestic dispute. On such information, they went at the place of incident and found dead body of the deceased lying on the cot. It was referred to the Hospital for postmortem and then FIR of the incident was lodged. Both of them, on asking were fair enough to admit that they have not seen the appellant committing murder of the deceased. When they have not seen the incident with their own eyes, then it would be justified to rely upon their evidence to base conviction.

11.              On investigation, as per SIO/ASI Ghulam Rasool, he visited the place of incident, recorded 161 Cr.PC statements of the PWs, arrested the appellant and secured from him the gun which he allegedly used in commission of the incident and after usual investigation submitted challan of the case. On asking, he was fair to admit that 161 Cr.PC statements of the PWs were recorded by WPC. If it was so, then that WPC was to have been examined by the prosecution. His non-examination could not be overlooked. Surprisingly on asking, it was admitted by the complainant that the entire police papers were prepared before registration of FIR of the incident. If it was so, then it was table investigation. The table investigation could hardly be used in favour of the prosecution.

12.              No question has been put to the appellant in his statement recorded under section 342 Cr.PC, by learned trial Court to have his explanation on recovery of gun and reports of Chemical and Ballistic Experts; therefore, such recovery and reports cannot be considered against him legally.

13.              In case of Imtiaz alias Taj vs. The State and others             (2018 SCMR-344), it has been held by the Hon’able Apex court that;

“According to the prosecution a firearm had been recovered from the appellant’s custody during the investigation but it is undeniable that a positive report statedly received from the Forensic Science Laboratory in respect of the said firearm had not been put to the appellant at the time of recording of his statement under section 342 Cr.P.C. 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.P.C. cannot be considered against him and, thus, no corroboration to the ocular account was forthcoming on this score.”

14.              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 appellant beyond shadow of doubt and he is entitled to such benefit.  

15.              In case of Faheem Ahmed Farooqui vs. The State              (2008 SCMR-1572), it is held that;

“single infirmity creating reasonable doubt regarding truth of the charge makes the whole case doubtful.

16.              In view of the facts and reasons discussed above, the conviction and sentence recorded against the appellant together with the impugned judgment are set-aside. Consequently, the appellant is acquitted of the offence for which he was charged, tried and convicted by learned trial Court. The appellant shall be released forthwith in present case, if not required in any other custody case.

17.              The instant appeal is dispose of accordingly.

                                                                                             J U D G E

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