IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 850 of 2019

Appellant: Faizan @ Munna through Mr. Salahuddin Chandio and Ms. Arooba Ali advocates

The State: Through Mr. Khadim Hussaim, Additional Prosecutor General Sindh

Complainant: Muhammad Shakeel in person

Date of hearing: 27.09.2022

Date of judgment: 27.09.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant committed death of Muhammad Saleem by causing him fire shot injury, for that he was booked and reported upon. After due trial, he was convicted for an offence punishable under Section 302(b) PPC and sentenced to undergo imprisonment for life and to pay compensation of Rs.50,000/- to the legal heirs of the deceased and in default whereof to undergo simple imprisonment of 06 months with benefit of section 382-B Cr.P.C by learned Additional Sessions Judge-VII/MCTC-II Karachi Central, vide judgment dated 30.09.2019, which is impugned by the appellant before this Court by preferring the instant jail appeal.

2. It is contended by learned counsel for the appellant that appellant being innocent has been involved in this case falsely by the complainant party in order to satisfy its grudge with him and the evidence of the prosecution witnesses being doubtful in its character has been believed by the trial Court without lawful justification, therefore, the appellant is entitled to his acquittal by extending him benefit of doubt. In support of his contentions, he relied upon the case of Muhammad Ilyas and another vs. Ameer Ali and another (PLJ 2019 SC (Cr.C) 560).

3. Learned Addl. PG for the State, who is assisted by the complainant by supporting the impugned judgment has sought for dismissal of instant jail appeal by contending that the prosecution has been able to prove its case against the appellant beyond shadow of doubt.

4. Heard arguments and perused the record.

5. It was stated by the complainant that on the date of incident when he was available at his house was intimated by PW Kashif on cell phone that Muhammad Saleem has been fired at by the appellant and he is being taken to Abbasi Shaheed Hospital. On such information, he went at Abbasi Shaheed Hospital, there his brother Muhammad Saleem was declared dead and he then reported the incident to police by making such statement, it was recorded by I.O/ASI Rab Nawaz. His evidence hardly lends support to the case of prosecution for the reason that he is not an eye witness of the incident. P.W Kashif, being star witness of the incident, has not been examined by the prosecution, for no obvious reason. Inference which could be drawn of his non-examination under Article 129(g) of Qanun-e-Shahadat Order, 1984 would be that he was not going to support the case of prosecution. On ocular premises the prosecution has examined P.W Adnan. His name is not appearing in FIR as witness. He is appearing to have been introduced in investigation subsequently by recording his 161 Cr.P.C statement on 3^rd day of the incident. No explanation to such delay is offered by the prosecution, therefore, his evidence could hardly be relied upon to maintain conviction being managed witness. On arrest from the appellant as per IO/SIP Mehtab Alam was secured the pistol, used by him in commission of the incident, it was matched with empty secured from the place of the incident. The pistol secured from the appellant has been subjected to forensic analysis with delay of about 12 days to its recovery. No explanation to such delay is offered by the prosecution, therefore, the appellant could hardly be connected with such recovery. Even otherwise, none has been examined by the prosecution to prove the safe custody of the pistol secured from the appellant and empty secured from the place of the incident. In these circumstances, the conclusion which could be drawn of the discussion would be 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 Abdul Khaliq vs. the State (1996 SCMR 1553), it has been held by Hon’ble apex Court that;

“……It is a settled position of law that late recording of 161, Cr.P.C. statement of a prosecution witness reduces its value to nil unless there is plausible explanation for such delay.”

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

9. The instant jail appeal is disposed of accordingly.

JUDGE