IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Appeal No.S-68 of 2018
Appellant Inam Ali son of Imdad Ali Khoso
Through Mr. Habibullah G. Ghouri, Advocate.
Complainant: Ghulam Shabir Khoso
Through Mr. Ghulam Sarwar Abdullah Soomro, Advocate.
The State: Through Mr. Ali Anwar Kandhro, Additional Prosecutor General, Sindh.
Date of hearing: 24.02.2023
Date of decision: 24.02.2023
Date of reasons: 27.03.2023
JUDGMENT
ZULFIQAR ALI SANGI, J.:-Through instant Criminal Appeal, the appellant has assailed the Judgment dated 15.08.2018, passed by learned Additional Sessions Judge-VI, Larkana in Sessions Case No.620/2016 (Re.State.Vs.Iman Ali Khoso and others),being outcome of F.I.R. bearing Crime No.17/2008, for offence punishable Under Section 324, 504, 34 P.P.C. registered with Police Station Rahmatpur whereby he has been convicted for an offence punishable U/S.324PPC and sentenced to suffer rigorous imprisonment for five years with fine of Rs.20,000/- and in default whereof to suffer simple imprisonment for three months more, with benefit of Section 382-B Cr.P.C.
2. The facts in nutshell are that on 28.03.2008 at 1400 hours, complainant Ghulam Shabir Khoso lodged F.I.R. at Police Station Rahmatpur, that he along with his brother Ghulam Akber and nephew Ghulam Mahdi was going to the hotel at Rehmatpur when at 8:00 p.m they reached in the street of Bagris, they saw accused Inam duly armed with repeater, Asif armed with gun, Azhar armed with pistol and Javed Ali armed with gun, accused Inam while challenging Ghulam Akber disclosed that despite ultimatum not to allow Fateh Ali in house of complainant, they were allowing him, saying so, Inam Ali made fire from his weapon at Ghulam Akber which hit him on right arm, accused Asif also fired from his weapon at Ghulam Akber which hit on his back side buttock who fell down. On the cries of complainant party and fire reports, Nazar Hussain, the father of complainant and other persons rushed there, seeing them all the four accused persons with their respective weapons fled away. The complainant party noticed that Ghulam Akber had sustained firearm injuries, they shifted him to Chandka Medical College Hospital Larkana and after his treatment; the complainant went to the Police Station and lodged instant F.I.R.
3. After usual investigation challan was submitted before competent Court of law showing present accused Inam Ali and co-accused Asif Ali as absconders, while co-accused Azhar and Javed in custody who faced the trial and were acquitted while case against present accused and co-accused Asif Ali was kept on dormant file vide judgment dated 02.12.2010 passed by the learned 1st Additional Sessions Judge, Larkana.
4. Accused Inam Ali was arrested on 19.10.2016 at 1900 hours, his subsequent report was submitted and the R & Ps of subsequent report were received to the concerned Court by way of transfer from the Court of Sessions Judge, Larkana for disposal in accordance with law on 25.10.2016.
5. Accused Inam Ali was tried and acquitted by learned VI-Additional Sessions Judge, Larkana vide Judgment dated 11.03.2017, but said judgment was challenged before this Court by complainant Ghulam Shabir by filing Criminal Acquittal Appeal No.S.17/2017 and impugned judgment was set aside vide order dated 19.03.2018, the case was remanded to the trial Court with the directions to record statement of the accused under section 342 Cr.P.C afresh in accordance with law by confronting him every piece of evidence for his explanation thereon and then decide the case afresh by applying independent mind.Thereafter afresh statement under section 342 Cr.P.C of the accused was recorded at Ex.11, he denied the allegations of the prosecution, however, he neither got examine himself on oath u/s 340(2) nor did he produce any witness in his defence.
6. The learned trial Court on evaluation of the material brought on record and hearing counsel for the parties convicted and sentenced the present appellant/accused vide impugned judgment, as discussed above.
7. Per learneddefence counsel, there are material contradictions in the evidence of prosecution witnesses which haveshattered the veracity of their evidence; that burden of proof always lies on the shoulders of prosecution for which prosecution is failed to prove the case; that the trial against co-accused Azhzar Ali and Javed Ali concluded after recording of evidence of complainant and PWs and vide judgment dated 02.12.2010 they were acquitted of the charge and said judgment was not challenged either by the prosecution or by the complainant party as such it attained finality; that the learned trial Court has failed to consider the two judgments of acquittal in the case; that in the first round the appellant was acquitted, however acquittal appeal was filed and the same was allowed to the extent of remand of the case for recording statement under section 342 Cr.P.C. whereas the evidence remained same on which the appellant was earlier acquitted. He lastly concluded that the case of prosecution is doubtful and the appellant/accused is entitled to his acquittal in the circumstances of the case.
8. On the other hand, learned Additional Prosecutor Generaland learned counsel for the complainant support the impugned judgment and submit that all the witnesses have fully supported the case of prosecution and no major contradiction has been noticed in their evidence; that the ocular evidence is consistent with medical as well circumstantial account,in that situation,the learned trial Court on being finding present appellant guilty of the offence has rightly convicted and sentenced him by way of impugned judgment which requires no interference by this Court, hence, the appeal filed by him is liable to be dismissed.
9. I have given due consideration to the arguments advanced by learned counsel for the parties and have minutely gone through the material made available on the record with their able assistance.
10. The meticulous re-appraisal of material brought on the record is entailing that though the prosecution witnesses have tried to support the case of prosecution but their evidence when scrutinized deeply was found coupled with material infirmities/improbabilities. While perusing the evidence of the prosecution witnesses, material contradictions were found which the learned trial Court did not considered. The ocular evidence was belied by medical evidence with regard to the time and the injury is concerned. The present accused was arrested on 19.10.2016 and was sent up with subsequent report and the case proceeded against him afresh and vide Judgment dated 11.03.2017 present appellant Inam Ali was acquitted by the Court of 6th Additional Sessions Judge, Larkana by disbelieving the evidence of complainant and P.Ws, the said judgment was assailed by the complainant in criminal acquittal appeal No.17 of 2017, which was remanded to the trial court vide order dated 19.03.2018 with direction to record statement of accused under section 342 Cr.P.C afresh and subsequently the applicant was convicted vide impugned judgment, which indicates that the learned Trial Court has erred while passing the impugned Judgment.
11. The complainant Ghulam Shabir and other P.Ws namely Ghulam Akbar and Ghulam Mehdi have admitted during their cross examination that their earlier evidence in the present case was disbelieved by the Court and co-accused Azhar Ali and Javed Ali were acquitted in the present case and the said judgment has not been challenged by them, which attained the finality. Further on perusal of record reflects that only three witnesses, Ghulam Shabir (complainant) and P.Ws Ghulam Akbar and Ghulam Mehdi were examined by the prosecution and thereafter statement was filed with the request that the evidence of other P.Ws recorded earlier be considered and the other P.Ws were not examined including the doctor, the evidence of said P.Ws was already disbelieved by the trial Court while acquitting co-accused Azhar Ali and Javed Ali. Perusal of impugned judgment also reflects that while awarding the conviction / sentence to the present appellant, such evidence was considered, relied by the trial Court, which was even not recorded at the time of trial of present appellant. The prosecution is also failed to bring on record the medical evidence and even the medical certificate has not been exhibited in the evidence but on careful perusal of fresh statement under section 342 Cr.P.C. it reflects that a question was put from the appellant in respect of medical certificate and while considering the medical certificate the accused was convictedsuch practice is totally against the law. It is settled principle of law that the evidence withheld by the prosecution and the documents which were not exhibited in the evidence cannot be considered/used for awarding conviction as on such evidence or documents the accused has not been given the right of cross examination or the right of challenging the same.
12. It is an established principle of law that an accused person is presumed to be innocent until and unless he is proved guilty beyond a reasonable doubt and this presumption of his innocence continues until the prosecution succeeds in proving the charge against him beyond a reasonable doubt on the basis of legally admissible, confidence-inspiring, trustworthy and reliable evidence. It has also been held by the Superior Courts that the conviction must be based upon unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused. The rule of giving benefit of doubt to an accused person is essentially a rule of caution and prudence and is deep-rooted in our jurisprudence for the safe administration of criminal justice. In common law, it is based on the maxim, "It is better that ten guilty persons be acquitted rather than one innocent person be convicted". While in Islamic criminal law it is based on the high authority of sayings of the Holy Prophet of Islam (Peace Be Upon Him): “Avert punishments (hudood) when there are doubts” and “Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him [accused], let him have his way, because the leader's mistake in pardon is better than his mistake in punishment.” The Hon’ble Supreme Court has quoted probably the latter part of the last-mentioned saying of the Holy Prophet (PBUH) in the case of AyubMasih v. State (PLD 2002 SC-1048) "Mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent." The same principle has also been followed by the Honourable Supreme Court of Pakistan in the recent Judgment in case of Naveed Asghar and 2 others v. The State (PLD 2021 SC-600). It is also settled principle of law that if a single circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in case of Tariq Pervez v. The State(1995 SCMR-1345), wherein the Honourable Supreme Court of Pakistan has held as under:-
"The concept of benefit of doubt to an accused person is deep-rooted in our country for giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is any circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right".
13. The over-alldiscussion has arrived at judicious conclusion that the learned trial Court has committed illegality while recording conviction/sentenceagainst the appellant holding him guilty of the alleged offence. Consequently, the instant criminal jail appeal was allowed; the conviction and sentence awarded to the appellant by learned trial Court vide impugned judgment were set-aside and he was acquitted of the charged offence vide short order dated 24.02.2023. The appellant was present on bail, his bail bond was cancelled and surety was discharged.
14. These are the reasons of my short order dated 24.02.2023.
JUDGE