ORDER SHEET

JUDGMENT SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Jail Appeal.No.D-53 & 54 of 2019.

___________________________________________________________

DATE ORDER WITH SIGNATURE OF HON’BLE JUDGE

___________________________________________________________

Before:

Mr. Justice Irshad Ali Shah,

Mr. Justice Shamsuddin Abbasi,

For hearing of main case.

26.10.2021

Mr. Imdad Ali Malik, Advocate for the appellants.

Mr. Riaz Hussain Khoso, Advocate for the complainant.

Mr. Ali Anwar Kandhro, Addl. Prosecutor General for the State.

= * = * = * = * = * =

IRSHAD ALI SHAH, J;- It is alleged that the appellants with rest of the culprits in furtherance of their common intention, committed murder of Mst.Tahira, by causing her injuries with fire shot and hard blunt substance, after alleging her to be “Kari” and then went away by snatching cell phone from PW Arshad Mehmood and on arrest from them, allegedly has been secured the snatched cell phone and an unlicensed pistol said to be used in commission of alleged incident, for that they were booked and reported upon and after full dress trial, they have been convicted and sentenced for the said offence to various terms spreading over imprisonment for life with fine, by learned Incharge Judge, Anti-Terrorism Court, Shikarpur, vide judgment dated 31.08.2019, which has been impugned by the appellants before this Court by preferring two separate appeals from jail.

2. It is contended by learned counsel for the appellants that the appellants have nothing to do with the alleged incident; the recovery has been foisted upon them and they have been involved in this case falsely by the complainant party only for the reason that they are relatives of main accused Waqar Ahmed, who allegedly has killed his wife Mst.Tahira, after declaring her to be “Kari” and the evidence of the prosecution witnesses being inconsistent and doubtful has been relied upon by learned trial Court without lawful justification; therefore, the appellants are entitled to their acquittal by extending them benefit of doubt. In support of his contentions, he has relied upon cases of State through Advocate General Khyber Pakhtunkhwa, Peshawar Vs. Hassan Jalil and others (2019 SCMR-1154) and Muhammad Amin Vs. The State and another (2019 SCMR-2057).

3. Learned Addl.P.G for the State and learned counsel for the complainant by supporting the impugned judgment have sought for dismissal of the instant jail appeals by contending that the appellants are vicariously liable for commission of the incident and on arrest from them have been secured robbed cell phone and an unlicensed Pistol used in commission of the incident. In support of their contentions, they have relied upon cases of Muhammad Afzal and 02 others Vs. The State (2003 SCMR-1678), 2). Ashfaq Ahmed Vs. The State (2007 SCMR-641), 3). Waheed Kalhoro and others Vs. The State (2014 PCr.LJ-1405), and 4). Munir Malik and another Vs. The State (2019 YLR-770).

4. We have considered the above arguments and have perused the record.

5. It is inter-alia stated by complainant Muhammad Iqbal, PWs Arshad Mehmood and Abdul Sami that they were intimated on cell phone by Mst.Tahira that she has been maltreated by her in-laws and on such intimation, they went at her house and found her to have been maltreated, besides her, there were found the appellants and co-accused Waqar Ahmed and when PW Arshad Mehmood was about to intimate the police about maltreatment to Mst.Tahira on cell phone, it was snatched by appellant Ghulam Farid alias Comrade and in the meanwhile, co-accused Waqar Ahmed caused fire shot injury to Mst.Tahira and then all the accused fled away, they took Mst.Tahira to Civil Hospital, Jacobabad, there she died. As per Woman Medical Officer Dr.Ghazala Qureshi, Mst.Tahira on sustaining fire shot injuries has died instantaneously. By stating so, she has belied the complainant and his witnesses that they took Mst.Tahira in injured condition to Civil Hospital, Jacobabad, there she died. No cell phone whereby Mst.Tahira allegedly intimated the complainant and his witnesses about her maltreatment has been secured by the police. Even otherwise, it is highly doubtful that after maltreatment to Mst.Tahira, the appellants could have waited for the complainant party to come only to witness her murder for their involvement in criminal case. In that situation, the delay of about five hours in lodgment of FIR could not be overlooked; it obviously is reflecting consultation and deliberation.

6. In case of Mehmood Ahmed & others vs. the State & another (1995 SCMR-127), it has been observed by the Hon’ble 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”.

7. If for the sake of arguments, the version of the complainant and his witnesses with regard to death of deceased Mst.Tahira is believed to be true then her murder obviously was committed by her husband co-accused Waqar Ahmed by causing her fire shot injury and he now as has come on record, has been killed. The involvement of the appellants in commission of the incident on point of vicarious liability or under the allegation that they snatched the cell phone from PW Arshad Mehmood in the circumstances is appearing to be doubtful. As per FIR, it was Samsung H-6 cell phone, which allegedly was snatched during course of incident from PW Arshad Mehmood. The cell phone which has allegedly been secured in the present case by police on pointation of appellant Ghulam Farid alias Comrade is simple Samsung, it obviously is not same, such recovery even otherwise was made on 5^th day of arrest of appellant Ghulam Farid alias Comrade. In that situation, he could hardly be connected with such recovery. The name of appellant Kamran is not appearing in FIR, it has been disclosed by the complainant and PWs by way of further statements, which have been recorded with delay of 21 days after the incident and such delay having not been explained plausibly could not be ignored. On arrest from appellant Ghulam Farid alias Comrade, as per FIR Crime No.39/2018, under section 23(i)(a) of Sindh Arms Act, 2013, has been secured an unlicensed Pistol of 30 bore by SIP Imam Bux, which he allegedly used for committing murder of Mst.Tahira. As said above, Mst.Tahira allegedly was fired at by her husband co-accused Waqar Ahmed and not by appellant Ghulam Farid alias Comrade, therefore, he could hardly be connected with recovery of such pistol. Surprisingly, such Pistol when was analyzed by Ballistic Expert with delay of more than three years, was found matched with empty secured from the place of incident, which allegedly was fired at by co-accused Waqar Ahmed, which appears to be incredible. In these circumstances, it could be concluded safely that the involvement of the appellants in commission of the above incident, the prosecution has not been able to prove beyond shadow of reasonable doubt and to such benefit they are found entitled to.

8. In case of Muhammad Masha vs. The State (2018 SCMR 772), it was observed 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". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), GhulamQadir and 2 others v.The State (2008 SCMR 1221), Muhammad Akram v.The State (2009 SCMR 230) and Muhammad Zaman v.The State (2014 SCMR 749).”

9. The case law which is relied upon by learned Addl.P.G for the State and learned counsel for the complainant is on distinguishable facts and circumstances. In case of Muhammad Afzal and others (supra), the incident occurred in day time and every accused was assigned specific role. In the instant matter, specific role of causing death of deceased is attributed to co-accused Waqar Ahmed. In case of Ashfaq Ahmed (supra), it was held by the Honourable Apex Court that no lenient view could be taken merely on the ground that motive is not proved. In the instant case, the very involvement of the appellants in commission of the incident, the prosecution has not been able to prove beyond doubt. Case of Waheed Kalhoro and others (supra), is relating to abduction for ransom, the accused were identified by the complainant party in identification parade. In the instant matter, neither anyone has been abducted nor any identification parade of the accused has taken place. In case of Munir Malik and another (supra), the case of prosecution was supported by injured witnesses. In the instant matter, there is no injured witness.

10. Above are the reason of short order dated 26.10.2021 whereby the instant appeals were allowed in the following terms;

“For the reasons to follow, these Criminal Jail Appeals are allowed and conviction and sentence awarded to appellants Ghulam Fareed alias Comrade son of Muhammad Murad Umrani and Kamran son of Hazar Khan Umrani, vide impugned Judgment dated 31.08.2019 passed by the learned I/C Judge, Anti-Terrorism Court, Shikarpur in Special Case No.57 of 2018 and Special Case No.58 of 2018, emanating from Crime No.27 of 2015 for the offence under sections 302, 311, 392, 34 P.P.C and 6/7 of ATA and Crime No. 39 of 2018, registered at Police Station City, District Jacobabad for the offence under section 23(i)-A of the Sindh Arms Act, 2013 are set aside and the appellants are directed to be released forthwith, if they are not required to be detained in any other custody case”.

JUDGE