IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No.S-39 of 2021

Appellant:                    Mushtaque Ahmed s/o Ali Gul Rind

Through Mr.Safdar Ali Kanasrio, Advocate

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

Date of hearing:           24.03.2023

Date of decision:           24.03.2023

JUDGMENT

IRSHAD ALI SHAH, J; The facts in brief necessary for disposal of instant criminal appeal are that the appellant with rest of the culprits allegedly after having formed an unlawful assembly and in prosecution of their common object, committed murder of Mst.Shazia and Hazar Khan under allegation of Karap, for that the present case was registered. On investigation, the appellant was apprehended and challaned accordingly. On denial of charge by the appellant, the prosecution examined, in all seven witnesses and then closed its side. The appellant in his statement recorded under Section 342 Cr.PC denied the prosecution’s allegation by pleading his innocence, examined none in his defence or himself on oath. On conclusion of trial, he was convicted under Section 302 (b) PPC for committing murder of Mst.Shazia and Hazar Khan and sentenced to undergo rigorous imprisonment for life as Tazir and to pay compensation of Rs.10,00,000/- to the legal heirs of the said deceased and in default whereof to undergo simple imprisonment for one year, with benefit of Section 382-B Cr.PC, by learned 1^st Additional Sessions Judge/MCTC, Jacobabad, which he has impugned before this Court by preferring the instant criminal 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; none indeed has seen the appellant committing the alleged incident and he virtually has been convicted and sentenced by learned trial Court on the basis of no evidence. By contending so, he sought for sought for acquittal of the appellant by extending him benefit of doubt, which is opposed by learned Addl. P.G for the State by supporting the impugned judgment.

3.         Heard arguments and perused the record.

4.         It was inter-alia stated by complainant SIP Shabir Ahmed and PW/HC Ahsan Ali that on the date of incident, they with rest of the police personnel when were conducting patrol within jurisdiction of P.S, Saddar, Jacobabad, came to know through spy information that the appellant and others have committed murder of Mst.Shazia and Hazar Khan under the allegation of Karap at their village Datto Khan Rind; on such information, they went at the place of incident; found the dead body of Mst.Shazia lying there, while for dead body of Hazar Khan they were told by the women available at the spot that it has been taken away by his relatives. No such woman however is examined at trial; such omission on part of prosecution could not be ignored. It was further stated by them that the dead bodies of the deceased were secured, those were referred to hospital for postmortem and then formal FIR of the incident was lodged with P.S, Saddar. The evidence of complainant and PW/HC Ahsan Ali prima facie suggests that they are not eye witnesses to the incident. It was further stated by the complainant that on investigation, he apprehended the appellant and secured from him an unlicensed T.T pistol of 30 bore under memo which he allegedly used in commission of the incident. Surprisingly the pistol with empties allegedly secured from the place of incident were sent to the Ballistic Expert together that too with unexplained delay of about ten days. Legally, it was to have been sent separately, therefore, such recovery could hardly be treated to be conclusive evidence to maintain conviction against the appellant. In these circumstances, it could be concluded safely that the prosecution has not able to prove its case against the appellant beyond shadow of doubt and to such benefit he too is found entitled.

5.         In case of Muhammad Jamil vs. Muhammad Akram and others         (2009 SCMR 120), it has been held by the Hon’ble Apex Court that;

“When the direct evidence is disbelieved, then it would not be safe to base conviction on corroborative or confirmatory evidence.”

6.         In case of Muhammad Bilal and others vs. The State and others (2021 SCMR-1039), it has been held by the Honourable Apex Court.

“Besides the above, the empty and the pistol were sent together vide Ex.PW-7/6 to Forensic Science Laboratory, Khyber Pakhtunkhwa (FSL) on 8^th August 2016. The report of the Fire Arms Expert is Ex.PK/1. In these circumstances, positive report becomes highly doubtful and can in no way be considered as a piece of corroborative evidence worth reliance.”

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 facts and reasons discussed 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 is not required to be detained in any other custody case.

9.         The instant criminal appeal is disposed of accordingly.     

              JUDGE