IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Jail Appeal No.S-68 of 2019

Appellant: Abdul Karim s/o Hamid Shaikh

Through Mr.Ghayoor Abbas Shahani, Advocate

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

Date of hearing: 30.03.2023

Date of decision: 30.03.2023

JUDGMENT

IRSHAD ALI SHAH, J;- It is alleged that the appellant committed murder of Imam Bux by causing him fire shot injuries, kept PW Rehmatullah under wrongful restraint by causing him butt blows and then went away by committing robbery pair of bullocks of complainant party, for that he was booked and reported upon. On conclusion of trial, he was convicted and sentenced to various terms of imprisonment spreading over life with fine by learned 1^st Additional Sessions Judge/MCTC, Kandhkot, vide judgment dated 13.06.2019, which he has impugned before this Court by preferring the instant criminal jail appeal.

2. It is contended by learned counsel for the appellant that the appellant has been convicted and sentenced by learned trial Court solely on the basis of evidence of PW Rehmatullah which was doubtful in its character; therefore, the appellant is entitled to his acquittal 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. Complainant Sawan Khan is not eye witness to the incident; therefore, his evidence hardly supports the case of prosecution. PW Khano Shaikh who actually intimated the complainant about the incident has not been examined. PW Rehmatullah, no doubt, has attempted to implicate the appellant in commission of the incident but when asked about the injury, which he allegedly sustained during course of incident, stated that it was simple; therefore, he did not go to hospital. If for the sake of arguments, it is believed that the injury sustained by him was simple; even then there should have been memo of such injury, which has not been brought on record, which has made his claim to be injured witness of the incident to be doubtful. The medical officer and investigating officer of the present case too have not been examined on account of their death. The case property has not been produced at trial. The main reason which prevailed with learned trial Court to base conviction against the appellant is his absconsion. Surprisingly, he has not been confronted with such fact by learned trial Court during course of his examination under section 342 Cr.PC. 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 is found entitled.

5. In case of Haji Nawaz vs. The State (2020 SCMR 687), it has been held by Hon’ble Apex Court that;

“The law is settled by now that if a piece of evidence or a circumstance is not put to an accused person at the time of recording his statement under section 342 Cr.P.C then the same cannot be considered against him for the purpose of recording his conviction.”

6. 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".

7. 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 charge, he shall be released forthwith, if is not required to be detained in any other custody case.

JUDGE