IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.
Criminal
Appeal No.S-13 of 2021.
Appellant : Muhammad Junaid s/o Muhammad Islam,
Bycaste
Abbasi. (Confined at Central Prison
Sukkur).
Through Mr. Muhammad Hamzo Buriro, advocate.
The State : Through Syed Sardar Ali Shah
Rizvi, Deputy
Prosecutor
General.
Complainant : Muhammad Rafique Gopang in person.
Date of hearing : 20-05-2021.
Date of decision : 20-05-2021.
JUDGMENT
IRSHAD ALI SHAH, J; The facts in brief necessary for disposal of
instant appeal are that the appellant allegedly with rest of the culprits in
furtherance of their common intention caused acid injuries to PW Muhammad
Raheel with intention to commit his murder, for that they were booked and
reported upon.
2. The
appellant, co-accused Muhammad Tahir and Muhammad Islam were charged for the
said offences, which they denied and the prosecution to prove it, examined
complainant Muhammad Rafique and his witnesses and then closed its side.
3. The
appellant and the said co-accused in their statements recorded u/s 342 Cr.P.C
denied the prosecution’s allegation by pleading innocence by stating that they
have been involved in this case falsely by the complainant party due to
political enmity. They did not examine anyone in their defence or themselves on
oath in terms of section 340 (2) Cr.P.C.
4. On
conclusion of the trial, co-accused Muhammad Islam and Muhammad Tahir were
acquitted by extending them benefit of doubt, while appellant was convicted and
sentenced to undergo Imprisonment for fourteen years and to pay fine of rupees
one million and in default whereof to undergo rigorous imprisonment for one
year for offence punishable u/s 336-B r/w section 324 PPC by learned Additional
Sessions Judge (Hudood) Sukkur vide his judgment dated 15-02-2021, which is
impugned by the appellant before this Court by preferring the instant Crl.
Appeal.
5. It
is contended by learned counsel for the appellant that the appellant being
innocent has been involved in this case falsely by the complainant party in
order to satisfy with him their old enmity; the FIR has been lodged with delay
of about one day and on the basis of same evidence, co-accused Muhammad Islam
and Muhammad Tahir have been acquitted, while the appellant has been convicted and
sentenced by learned trial Court. By contending so, he sought for acquittal of
the appellant.
6. Learned
DPG for the State, who is assisted by the complainant, by supporting the
impugned judgment, has sought for dismissal of the instant appeal.
7. I
have considered the above arguments and perused the record.
8. The
FIR of the incident has been lodged with delay of about one day. No plausible
to such delay has been offered. The charge was amended, whereby section 336-B
PPC was inserted by learned trial Court contrary to the finding of the police, without
recording evidence of anyone to determine the applicability of such section to
facts and circumstances of the case, which is appearing to be significant. Dr.
Muhammad Yaseen when was examined, was fair enough to say that the injuries
sustained by PW Muhammad Raheel being superficial in nature were falling u/s
337L(II) PPC. Superficial injuries, that too on non-vital part of the body of
the injured could hardly have been caused to him with intention to commit his
murder. No finding for acquittal or conviction for an offence punishable u/s
337L(II) PPC has been recorded against the appellant. The appellant has been
convicted and sentenced to undergo rigorous imprisonment for fourteen years
with fine of rupees one million, and in default whereof to undergo R.I for one
year for offence punishable u/s 336-B PPC r/w section 324 PPC. The
single/jumble punishment for distinct offence is contrary to the mandate
contained by sub-section (2) to section 367 Cr.P.C. The parties admittedly are
inimical with each other. There is no recovery of any sort from the appellant.
On investigation, as per I/O Khuda Bux, the appellant was found to be innocent.
On the basis of same evidence, co-accused Muhammad Islam and Muhammad Tahir
have been acquitted by learned trial Court. In these circumstances, it would be
hard to maintain the conviction against the appellant.
9. 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”.
10. In case of Sardar
Bibi and others vs. Munir Ahmed and others (2017 SCMR-344), it has
been held by the Hon’ble Apex 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”.
11. 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".
12. In
view of the facts and reasons discussed above, the conviction and sentence
recorded against the appellant by way of impugned judgment are set-aside.
Consequently the appellant is directed to be released forth with in the present
case.
13. Above
of the reasons of short order dated 20-05-2021 whereby the instant appeal was
allowed.
Nasim/PA,