IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 97 of 2018

Appellant: Sanwal @ Charya through Ms. Abida Parveen Channer advocate

The State: Through Ms. Rubina Qadir, Deputy Prosecution General Sindh

Date of hearing: 22.08.2022

Date of judgment: 22.08.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant with rest of the culprits in furtherance of their common intention committed murder of Hafiz Talha by causing him fire shot injuries, for that he was booked and reported upon. After due trial, he was convicted under Section 302/34 PPC and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs.30,000/- and default whereof to undergo simple imprisonment for 03 months with benefit of section 382-B Cr.P.C, without specifying as to under what clause of section 302 PPC, he was going to be convicted by learned Additional Sessions Judge-IV, South camped at Judicial complex, Central Prison, Karachi vide judgment dated 04.01.2018, which is impugned by the appellant before this Court by preferring the instant appeal from jail.

2. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police, otherwise he was nothing to do with the alleged incident and has been convicted and sentenced by learned trial Court virtually on the basis of no evidence, therefore, he is entitled to his acquittal by extending him benefit of doubt, who even otherwise is about to complete his jail term.

3. Learned D.P.G for the state by supporting the impugned judgment has sought for dismissal of instant jail appeal, by contending that on arrest from the appellant has been secured the incriminating pistol, which was found matched with the empties secured from the place of incident.

4. Heard arguments and perused the record.

5. It was intimated to SIP Arab Hussain that the dead body of the deceased has been brought at Civil Hospital, Karachi. On such information he went there and then lodged FIR of the above incident on behalf the State with PS Eidgah Karachi South against unknown culprits and subsequently, it was disposed of under “A” class. After lapse of about two years, the appellant was arrested by SIP Qadir Khan of P.S CTD Garden East, Karachi together with unlicensed pistol of 9 m.m bore. SIP Qadir Khan who allegedly has recovered the incriminating pistol from the appellant has not been examined by the prosecution, for no obvious reason, such omission apparently has defeated the alleged recovery. The appellant, it is said during course of interrogation of present case, admitted before SIO/SIP Rafiq Ahmed and P.Ws PCs Muhammad Idrees and Waheed Khan that he, Saleem and Moiz have committed death of the deceased by causing him fire shot injuries at the instance of Aamir Billa. If for the sake of arguments, it is believed that such statement was made by the appellant before police officials, even then it could not be relied upon being inadmissible in evidence in terms of Article 39 of the Qanun-e-Shahadat Order, 1984. The pistol allegedly recovered from the appellant was found to be matched with the two empties after two years. On point of safe custody whereof none has been examined by the prosecution. No question has been put to the appellant during course of his examination under Section 342 Cr.P.C to have his explanation on point of recovery of alleged crime weapon from him and report of forensic expert, therefore, in that situation the appellant could hardly be connected with such recovery. In these circumstances, it could be concluded safely that the prosecution has not been able to prove the involvement of the appellant in present case beyond any shadow of doubt.

6. In case of Nadeem alias Kalia vs. The State and others (2018 SCMR 153), it has been held by Hon’ble Apex Court that;

“……….. Even otherwise, the said recovery is inconsequential because report of Forensic Science Laboratory was not put to the appellant while examining him under section 342, Code of Criminal Procedure.”

7. 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".

8. In view of above, the conviction and sentence awarded to the appellant by way of impugned judgment are set-aside, consequently, he is acquitted of the offence for which he was charged, tried and convicted by learned trial Court and he shall be released forthwith, if not required to be detained in any other custody case.

9. The instant appeal is disposed of accordingly.

JUDGE