JUDGMENT SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Jail Appeal No.S-215 of 2019

Appellant: Jan Muhammad son of Sher Muhammad bycaste Wassan. (Now confined in Central Jail Khairpur).

Through Mr. Shabbir Ali Bozdar advocate.

The State: Through Mr. Syed Sardar Ali Shah Rizvi, Additional Prosecutor General Sindh

Mr. Syed Ali Aamir Shah advocate for legal heirs of the deceased.

Date of hearing: 30-01-2023

Date of judgment: 30-01-2023

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 object committed murder of Mst. Zakia alias Mst. Najma by causing her hatchet injuries; for that they were booked and reported upon. On conclusion of trial co-accused Latif, Hanif, Shamsuddin and Sajjad Ali were acquitted while the appellant was convicted u/s 302 PPC as Tazir and sentenced to undergo Imprisonment for life and to pay compensation of Rs. 100,000/- (One Lac) to the legal heirs of the deceased with benefit of section 382(b) Cr.P.C by learned Ist Additional Sessions Judge/MCTC Khairpur vide judgment dated 26-09-2019 which is impugned by the appellant before this Court by way of instant Crl. Jail 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 police at the instance of complainant party; the FIR of the incident has been lodged with delay of about 05 hours and on the basis of same evidence co-accused Latif, Hanif, Shamsuddin and Sajjad Ali have been acquitted by learned trial Court extending them benefit of doubt. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt. In support of his contention he relied upon case of Abdul Ghafoor Vs. The State (2022 SCMR 1527).

3. Learned Additional P.G for the State and learned counsel for legal heirs of the deceased by supporting the impugned judgment have sought for dismissal of instant Crl. Jail Appeal by contending that the case of the appellant is distinguishable to that of acquitted accused. In support of their contention they have relied upon case of Islam Vs. The State (PLD 1962[(WP] Lahore 1053).

4. Heard argument and perused the record.

5. Complainant Din Muhammad could not be examined by the prosecution on account of his death. In FIR the specific role of causing death of the deceased by causing him hatchet injuries is attributed to the appellant. Subsequently by way of further statement, the complainant attributed role of causing death of deceased to appellant and co-accused Latif by causing her hatchet and dagger injuries blows; such inconsistency could not be overlooked. The FIR of the incident is also lodged with the delay of 05 days; such delay having not been explained plausibly could not be ignored. PWs Ghulam Shabbir and Deedar in their 164 Cr.P.C statements by supporting the complainant in his further statement, stated that it were the appellant and co-accused Latif, who committed the death of deceased by causing her hatchet and dagger injuries. On examination, they attributed role of committing death of deceased by causing her hatchet injuries to appellant alone. It was improvement on their part, which obviously was dishonest. In end of their examination, excepting appellant they did not recognize rest of the accused. On account of their, this attitude, they were declared hostile; they as such could hardly be treated to be trustworthy witnesses to be relied upon. The incriminating hatchet allegedly recovered from the appellant on 08-07-2010 has been deposited with Chemical Examiner on 13-07-2010, it was with delay of about 05 days to its recovery. No explanation to such delay is offered by the prosecution. SIP Din Muhammad, who has conducted much of the investigation of the present case, has not been examined by the prosecution on account of his disability. Nothing has been brought on record in shape of any document, which may suggest that he actually was in capable to make statement; therefore his non-examination could not be lost sight of. 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 too is found entitled.

6. In case of Muhammad Asif vs the State (2008 SCMR 1001), it has been held by Hon’ble apex Court that;

“…..yet there is a delay of about two hours which has not been explained. Similarly P.W.7 stated during cross-examination that the police reached the spot at twelve noon and about half an hour was consumed in conducting inquest proceedings and thereafter the dead body was sent to the hospital. He further stated that he accompanied the dead body which was taken in a wagon to the hospital and that it took only 15 or 20 minutes in reaching the hospital. In that case the dead body would have been received at the hospital by 1-00 p.m. On the contrary, the doctor, who is an independent witness, stated that he immediately started post mortem examination after the receipt of body and the time of post-mortem given by him was 4-50 p.m. that means that the body remained at the spot for quite some time. The F.I.Rs. which are not recorded at the police station suffer from the inherent presumption that the same were recorded after due deliberations…...”

7. In case of Muhammad Sulleman and others Vs. The State and others (PLD 2007 SC 223). It has been held by the Hon’ble Apex Court that;

“The testimony of a witness who speaks in the different tune at different times is certainly not reliable unless strong confirmatory evidence of independent character is available on record. Similarly, the sole testimony of an interested witnesses without independent corroboration may not be confident inspiring to be relied up-on for conviction. The rule of independent corroboration is a rule of abundant caution which is followed n the interest of safe criminal administration of justice and is not a mandatory rule of law to be necessarily applied in each case”.

8. 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”.

9. 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".

10. The case law which is relied upon by learned Additional P.G for the State and learned counsel for legal heirs of the deceased is on distinguishable facts and circumstances. In that case, issue of retracted confession of co-accused was involved. In the instant matter, no issue of retracted confession is involved.

11. 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, convicted and sentenced by learned trial Court, he shall be released forthwith, if not required to be detained in any other custody case.

12. Above are the reasons of short order dated 30-01-2023, whereby the instant jail appeal was allowed.

JUDGE

Nasim/P.A