JUDGMENT SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Appeal.No.S-25 of 2017.
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DATE ORDER WITH SIGNATURE OF HON’BLE JUDGE
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For hearing of main case.
18.11.2021
Mr. Javed Ahmed Soomro, Advocate for the appellant.
Complainant Baqa Muhammad in person.
Mr. Ali Anwar Kandhro, Addl. Prosecutor General for the State.
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IRSHAD ALI SHAH, J.- The appellant allegedly with rest of the culprits, after having formed an unlawful assembly and in prosecution of their common object, for committing murder of Himath Ali, by causing him fire shot injuries, after due trial, has been convicted and sentenced u/s.302 (b) PPC to undergo rigorous imprisonment for life and to pay compensation of Rs.500,000/- to legal heirs of the said deceased and in default whereof, to undergo simple imprisonment for six months, with benefit of Section 382-B Cr.PC, by learned 6th Additional Sessions Judge, Larkana, vide his judgment dated 08.02.2017, which has been impugned by the appellant before this Court by preferring the instant criminal appeal.
2. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the complainant; the evidence of the prosecution containing dishonest improvement has been believed by learned trial Court without lawful justification, therefore, the appellant is liable to his acquittal by extending him benefit of doubt. In support of his contentions, he placed his reliance upon cases of Muhammad Khan and another Vs. The State (1999 SCMR-1220), 2) Sardar Bibi and another Vs. Munir Ahmed and others (2017 SCMR-344) and 3). Muhammad Mansha Vs. The State (2018 SCMR-772).
3. The complainant by filing his affidavit has recorded no objection to acquittal of the appellant. However, learned Addl.P.G for the State by supporting the impugned judgment has sought for dismissal of instant criminal appeal by contending that the appellant has actively participated in commission of the incident and the prosecution has been able to prove its case against him beyond shadow of doubt.
4. I have considered the above arguments and perused the record.
5. In FIR of the incident, it is specifically stated by the complainant that on instigation of co-accused Ghulam Sarwar, accused Khadim Hussain, Mour and Jan Muhammad caused fire shot injuries to Himath Ali, who on sustaining such injuries died. Co-accused Ghulam Sarwar, Mour and Jan Muhammad have been let off by the police by finding them to be innocent by placing their names in column No.2 of the charge sheet while accused Khadim Hussain is still absconding. Apparently, in FIR no effective role in commission of the incident is attributed to the appellant. Subsequently, as per prosecution, the complainant by making further statement attributed the role of causing fire shot injury to the deceased on his neck to the appellant. The complainant during course of his examination was fair enough to say that his further statement was never recorded. By stating so, he made the contents disclosed in his further statement, if any, to be doubtful. Further statement, if any, even otherwise could not be treated as part of FIR. The complainant and PW Muhammad Baqar during course of their examination no doubt have attributed the role of causing fire shot injury to the deceased on his neck to the appellant but this appears to be a improvement on their part which is dishones in its character. On the basis of dishonest improvement in evidence on the part of the complainant and PW Muhammad Baqar, the conviction/sentence could hardly be maintained. PW Muhammad Din was given up by the prosecution for the reason that he was not going to support the case of prosecution. His non examination could not be lost sight of. PW/Mashir Shah Ali on account of his failure to support case of prosecution has been declared hostile. As per Investigating Officer Inspector Saeed Ahmed, the seven nominated accused were let off by him finding them to be innocent by placing their names in column No.2 of the charge sheet. None of them apparently has been joined in trial as accused. The complainant of the case now by filing his affidavit has also recorded no objection to acquittal of the appellant. His no objection to acquittal of the appellant could not be overlooked. In these circumstances, it could be concluded safely that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt and to such benefit, he is found entitled.
6. In case of Muhammad Mansha Vs. The State (2018 SCMR-772), it has been held 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".
7. In view of above, the conviction and sentence awarded to the appellant by learned trial Court by way of impugned Judgment is set aside. Consequently, the appellant is acquitted of the offence for which he has been charged, tried and convicted by learned trial Court. He shall be released forthwith (in the present case) if is not required to be detained in any other custody case.
8. The instant criminal appeal is disposed of accordingly.