IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No.S-72 of 2021.

 

 

Appellants:                          1). Roshan Ali s/o Lal Bux,

                                      2). Ali Gul s/o Ali Gohar @ Shaman,

                                      3). Wajid s/o Muhammad Siddique Bhatti

     Through Mr.Muhammad Afzal Jagirani,   

     Advocate

 

The State:                       Through Mr.Ali Anwar Kandhro, Addl.P.G.

 

Date of hearing:             09-03-2023

Date of decision:             09-03-2023

 

JUDGMENT

 

ZULFIQAR ALI SANGI, J;- The instant criminal appeal impugns the judgment dated 12.10.2021, delivered by learned 1st Additional Sessions Judge/MCTC, Kamber, in Sessions Case No.322/2021, emanating from FIR bearing Crime No.36/2021, for offence punishable U/S.324, 337-A(i), F(i) & 34 PPC, registered with P.S, Mahi Makol, whereby the appellants have been convicted and sentenced as under;

For offence U/S.337-A(i) PPC r/w Section 34 PPC, (Two injuries No.1 & 2) declared as Shajjah-e-Khafifah) with Daman of Rs.20,000/- per injury (Total Rs.40000) to be paid by each convict (Total Rs.120000) for payment to injured PW Mst.Samina as well as R.I (Tazir) for six months (per injury each convict) and in case of non-payment the convict at fault shall remain under simple imprisonment till; payment of Daman.

         

For offence U/S.337-F(i) PPC r/w Section 34 PPC (Three injuries No.3, 4 & 5) declared as (Jurh Ghayr-
Jaifah Damiyah) with Daman of Rs.10,000/- per injury (Total Rs.30,000) to be paid by each convict (Total Rs.90000) for payment to the injured PW Mst.Samina as well as R.I (Tazir) for six months (each injury per convict) and in case of non-payment the convict at fault shall remain under S.I till payment of Daman.

 

Sentences so awarded will run concurrently.

2.       The allegations against the present appellants/accused are to the effect that on 19.06.2021, at about 1300 hours, complainant Bashir Ahmed Bhatti got registered the FIR with P.S Mahi Makol, to the effect that on 18.06.2021, at about 1400 hours, at house of Sharif Muhammad Bhatti in village Dillo, the present appellants/accused after causing hatchet and danda injuries to Mst.Samina went away, for that they were booked and challaned in the present case.

 

3.       The, formal charge was framed against the present appellants/accused by learned trial Court, to which they pleaded not guilty and claimed trial.   

 

4.       To establish the accusation against the appellants/accused, the prosecution examined six witnesses i.e PW-01 Complainant Bashir Ahmed Bhatti, PW-02 Sajid Ahmed Bhatti, PW-03 Injured Mst.Samina, PW-04 Mashir Faiz Ali Bhatti, PW-05 Dr.Nagis Shaikh and PW-06 ASI/Author/SIO Abdul Nabi Chandio, who all produced certain documents in support of their statements. Thereafter, learned State Counsel closed the side of prosecution.

 

5.       Appellants/accused in their statements recorded U/S.342 Cr.PC, denied the allegations leveled against them by pleading their innocence stating therein that they have been implicated falsely due to household issue. They, however, did not examine themselves on oath in disproof of the charge nor led any evidence in their defence.

 

6.       The learned trial Court on appraisal of the material brought on record and hearing counsel for the parties convicted and sentenced the present appellants/accused vide judgment, as detailed above.

 

7.       Per learned defence counsel, the instant case is false and fabricated against present appellants/accused; that the evidence of all the prosecution witnesses being contradictory have no credibility and thus cannot be relied upon without independent corroboration; that the recovery of crime weapon has been foisted against accused just to strengthen this case. Summing up his contentions, the learned defence counsel submitted that the present accused have been arraigned in this case, which is discernible from the averments of the FIR, as such the case of prosecution is doubtful and has no foundation against the appellants/accused, therefore, they deserve to be acquitted in the circumstances of case.

 

8.       In rebuttal to above, learned Addl.P.G for the State contends that all the witnesses have fully supported the case of prosecution and no major contradiction is noticed in their evidence, therefore, learned trial Court finding the appellants/accused guilty of the offence has rightly convicted and sentenced them by way of impugned judgment which calls for no interference by this Court, therefore, the appeal filed by them being devoid of merits is liable to be dismissed.

 

9.       Heard arguments of learned counsel for the parties and have minutely gone through the material made available on record with their able assistance.

 

10.     The meticulous perusal of the evidence brought on record is entailing that all the witnesses have tried to support the case of prosecution but their evidence on deeper analysis was found unreliable coupled with material improbabilities. The broad features involved in this case are that the complainant and his witnesses have not witnessed with their own eyes the incident of causing injuries to injured Mst.Samina at the hands of accused, therefore, the ocular account is solely hanged on evidence of victim/injured Mst.Samina who in her cross examination admitted that after the incident several women and men of the neighbourhood gathered at the place of incident but it is astonishing to note that none from the neighbourhood was either examined by the investigation officer during course of investigation nor was any of them produced by the victim at trial to substantiate her version. Further, the alleged incident is said to have taken place on 18.06.2021 but the injured was referred to hospital on 19.06.2021, whereupon the woman medical officer Dr.Nargis examined the injuries of injured Mst.Samina and in the medical certificate issued by her so also in the evidence during her cross examination admitted that “injuries sustained by Mst.Samina were fresh. If the version of said woman medical officer is believed to be true then the entire story disclosed by the complainant has created conflict in between the ocular and medical accounts, which is appearing to be of self procured, concocted or flimsy. This piece of evidence in the above prevailing circumstances has demolished the entire case and rendered it highly doubtful.

11.     It is further observed that the Court(s) must never be influenced with severity of the offence while appreciating evidence for finding guilt or innocence because severity of an offence could only reflect upon quantum of punishment. Therefore, even such like tragic cases, the Courts are always required to follow the legally established position that it is intrinsic worth and probative value of evidence which plays a decisive role in determining the guilt or innocence and not heinousness or severity of offence. Reliance can be placed on the case of Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274). The rule of benefit of the doubt is essentially a rule of prudence which cannot be ignored while dispensing justice following the law. The conviction must be based on unimpeachable evidence and certainty of guilt and doubt arising in the prosecution case must be resolved in favour of the accused. The said rule is based on the maxim. "It is better that ten guilty persons be acquitted rather than one innocent be convicted" which occupied a pivotal place in the Islamic Law and is enforced strictly because of the saying of the Holy Prophet (PBUH) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent". It is well settled by now that the prosecution is bound to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty is casted upon the accused to prove his innocence. It has also been held by the Honourable Superior Courts that the conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In case of Wazir Mohammad v. The State (1992 SCMR 1134), it was held by Honourable Supreme Court that "In the criminal trial it is the duty of prosecution to prove its case against the accused to the hilt, but no such duty is casted upon the accused, he has only to create doubt in the case of prosecution. "Honourable Supreme Court in another case of Shamoon alias Shamma v. The State (1995 SCMR 1377), held that "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against accused, entitles him/them to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case. Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise. "Reliance is also placed on case of Naveed Asghar and 2 others v. The State (PLD 2021 SC 600).

 

12.     The over-all discussion arrived at conclusion that the prosecution has miserably failed to prove the guilt against present appellants beyond shadow of any reasonable doubt and it is a well-settled principle of law that for creating the shadow of a doubt, there should not be many circumstances. If a single circumstance creates reasonable doubt in the prudent mind, then its benefit is always extended in favour of the accused not as a matter of grace or concession, but as a matter of right. In this respect reliance is placed on the case of Muhammad Mansha v. The State (2018 SCMR-772), wherein the Hon’ble Supreme Court of Pakistan has held 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 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”. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v.The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)”.

 

13.     Resulting upon above discussion, I am of the judicious view that the learned trial Court has not evaluated the evidence in its true perspectives and thus arrived at an erroneous conclusion by holding present appellants as guilty of the offence. Thus, the instant criminal appeal was allowed; the conviction and sentence recorded against them by way of impugned judgment could not be sustained, it was set aside and the appellants were acquitted of the charged offence.

 

14.     Above are the reasons of my short order dated 09.03.2023 whereby the instant criminal appeal was disposed of accordingly.

 

 

                                                                                          JUDGE

            .