IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Jail Appeal No.S-10 of 2020
Appellants: 1. Mahoot alias Fayaz Khan son of Abdul
Ghafoor alias Morio Khan.
2. Awais Ahmed son of Mahoot alias Fayaz Khan both by caste Jakhrani
Through Mr. Imdad Ali Malik, Advocate
Complainant: Khair Jan Jakhrani
Through Mr. Javed Ahmed Soomro, Advocate.
State: Through Mr. Aitbar Ali Bullo, Deputy
Prosecutor General, Sindh.
Date of Hearing: 27.04.2023
Date of Judgment : 01.06.2023
JUDGMENT
ZULFIQAR ALI SANGI,J.:-This appeal is directed against Judgment dated 14.01.2020, passed by learned Additional Sessions Judge-I/Model Criminal Trial Court, Jacobabadin Sessions CasesNo.403, of 2016 (Re.The StateV/s.Mahoot alias Fayaz Khan and another),emanating from F.I.R. bearing Crime No.57/2016, offence under sections 302 & 34 P.P.C, registered at Police Station Mouladad,whereby present appellantswere convicted and sentenced to suffer Rigorous Imprisonment for Life as Tazir under section 302(b) P.P.C read with section 34 P.P.C and to pay fine / compensation of Rs.500,000/- each to be paid to the legal heirs of deceased as required by section 544-A Cr.P.C., in case of default in payment of fine they shall further suffer S.I for one year more. The benefit of section 382-B Cr.P.C was also extended to the appellants.
2. The facts in a nutshell are that on 25.7.2016, complainant Khair Jan Jakhranilodged FIR alleging therein that about one year back to this incident his nephew Rizwan Ahmed had married with daughter of Mahoot @ Fayaz Khan Jakhrani, who was working as Excise Officer. After one month of marriage Mahoot @ Fayaz Khan had taken away his daughter to his house for visiting purpose and they requested said Mahoot @ Fayaz Khan for return of wife of Rizwan Ahmed but he refused and said that Rizwan Ahmed should give divorce to his daughter else he would be murdered. It was further alleged by the complainant that on 24.7.2016 he alongwith his nephew Rizwan Ahmed aged about 25-26 years, brother Abdul Khalique and cousin Yaseen Ahmed on their motorcycles were on the way to look after their lands and at about 05:30 p.m when they reached at link road leading towards Mirwah near lands of Sardar Sajjad Khan Jakhrani, they saw one Indus Corolla car having Excise police number plate came there, from the said car accused Mahoot @ Fayaz Khan armed with Kalashnikov and accused Awais Ahmed armed with gun came out; accused Awais Ahmed aimed his gun upon them and directed to keep quite while accused Mahoot @ Fayaz Khan said that since Rizwan Ahmed is not ready to give divorce to his daughter therefore, he will be murdered, by saying so accused Mahoot @ Fayaz Khan straightly fired burst from his Kalashnikov upon his nephew Rizwan Ahmed with intention to commit his murder,he fell down while raising cries and then both accused fled away from scene of offence. Thereafter complainant found that Rizwan Ahmed was lying injured after receiving firearm injuries on his stomach, right arm, right leg and left hand, blood was oozing and he succumbed to injuries and expired at the spot. The dead body was shifted to Civil Hospital Jacobabad after obtaining letter and postmortem was conducted and after usual funeral complainant lodged instant FIR.
3. After completion of usual investigation, the case was challaned.The formal charge was framed against all the arrested accusedto which they pleaded not guilty and claimed to be tried.
4. The prosecution in order to substantiate its case examined in all eleven witnesses who produced certain items and documents in support of their evidence. Thereafter, learned State Counsel closed the side of prosecution.
5. The present accused in their statements recorded under section 342 Cr.P.C respectively denied the allegations leveled against them by pleading their innocence. However, none of them examined themselves on oath nor led any evidence in their 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 appellants/accused vide impugned judgment, as discussed above.
7. It is contended by learned counsel for the appellants that there are material contradictions in the evidence of prosecution witnesses which have shattered the veracity of their evidence; that there is no recovery of any incriminating article from the possession of the appellants to show their involvement in the present case; that the recovery of crime weapons was foisted upon them; that no role is assigned against appellant Awais Ahmed; that the delay in registration of the FIR has not been explained by the prosecution, therefore, conviction and sentence awarded to the appellants may be set aside and by allowing instant criminal jail appeal appellants may be acquitted.
8. On the other hand, learned counsel for the complainant as well as learned D.P.G.for the State submit that all the witnesses have fully supported the case of prosecution and no major contradiction has been noticed in their evidence; that ocular evidence is supported by the medical evidence; therefore, learned trial Court finding the appellants guilty of the offence has rightly convicted and sentenced them by way of impugned judgment, which does not call for any interference by this Court, hence, the appeal filed by the appellants being meritless is liable to be dismissed.
9. I have heard learned counsel for the parties and perused the material available on record with their able assistance.
10. The meticulous perusal of the evidence brought on record is entailing that the case against each appellant is on different footings therefore their case is discussed separately. The prosecution in order to prove the case against appellant Mahoot@ Fayaz Khan s/o Abdul Ghafoor @ Morio has examined three eye-witnesses of the incident namely complainant Khair Jan, Yaseen andAbdul Khalique, who being star/natural witnesses of the actual occurrence deposed unanimously in one voice thatRizwan’s marriage was taken place with the daughter of accused Mahoot@ Fayaz Khan s/o Abdul Ghafoor @ Morio (an Excise Officer). After about one month of the said marriage, Mahoot@ Fayaz Khan took his daughter to his house for the purpose of visit. Thereafter, they asked Fayaz Khan for return of his daughter, however, Fayaz Khan refused to return his daughter. He (Fayaz Khan) further asked that Rizwan should give divorce to her daughter; otherwise, he will kill him. On 24.7.2016, complainant, his witnessesand the deceased were going for looking after their agricultural land towards Mirwah link road near land of Sajjad Ahmad Jakhrani. When they reached there, they found that one Indus Corolla Car having Excise name plate came there and from it, accused Mahoot@ Fayaz Khan with Kalashnikov and Awais Ahmed s/o Fayaz Khan having DBBL gun alighted and they pointed their weapons at them. They further deposed that accused Awais Ahmed directed them to be silent, whereas Mahoot@ Fayaz Khan said as Rizwan is not divorcing his daughter hence he will kill him. Thereupon, accused Mahoot@ Fayaz Khan fired from his Kalashnikov which hit to Rizwan. Thereupon, Rizwan made cries and fell down on ground. Thereafter, both accused persons went away in their car towards western side. They due to fear remained silent and then found that Rizwan had sustained fire arm injuries at his abdomen, right arm and on right leg and he was bleeding and due to such fire arm injuries and then succumbed to injuries within their sight, they arranged conveyance and took the dead body to P.S. From PS, the dead body was shifted to Civil Hospital through police. The postmortem of the deceased was carried out. Afterwards, the dead body was shifted to their house and was buried. They further deposed that on 25.7.2016, FIR of the incident was registered. On the pointation of complainant, police officer inspected the place of incident which is located near link road Mirwah near Agricultural land of Mir Sajjad Khan Jakhrani, where police collected 7 empties of Kalashnikov and police also collected blood stained mud and sealed the same. All the three eye-witnesses have fully supported the case, as has been discussed above against appellantMahoot@ Fayaz Khan. It is settled principle of law that the sole evidence of a material witness i.e an eye-witness is always sufficient to establish guilt of the accused if it is confidence-inspiring and trustworthy and supported by other independent source of evidence because the law considers quality of evidence and not its quantity to prove the charge. The accused can be convicted if the Court finds direct oral evidence of one eye-witness to be reliable, trustworthy and confidence-inspiring. In this respect, reliance is placed upon cases of Muhammad Ehsan v. The State (2006 SCMR 1857) and Niaz-Ud-Din v.The State (2011 SCMR 725). Further, the Supreme Court in case of Allah Bakhsh v. Shammi and others (PLD 1980 SC 225) also held that "even in murder case conviction can be based on the testimony of a single witness, if the Court is satisfied that he is reliable." There can be no denial to the legally established principle of law that it is always the direct evidence which is material to decide a fact (charge). The failure of direct evidence is always sufficient to hold a criminal charge as ‘not proved’ but where direct evidence holds the field and stands the test of it being natural and confidence-inspiring then the requirement of independent corroboration is only a rule of abundant caution and not a mandatory rule to be applied invariably in each case. Reliance can safely be placed on case of Muhammad Ehsan vs. the State (2006 SCMR-1857), wherein the Honourable Supreme Court of Pakistan has held that;-
“5. It be noted that this Court has time and again held that the rule of corroboration is rule of abundant caution and not a mandatory rule to be applied invariably in each case rather this is settled principle that if the Court is satisfied about the truthfulness of direct evidence, the requirement of corroborative evidence would not be of much significance in that, as it may as in the present case eye-witness account which is unimpeachable and confidence-inspiring character and is corroborated by medical evidence”.
11. The ocular account so furnished by above three eye-witnesses is further substantiated by the medical evidence.The PW-2 Dr Abdul Razzak was examined by the prosecution who deposed that on 24.7.2016 he being posted as Medical Officer Civil Hospital Jacobabad received dead body of deceased Rizwan Ahmed s/o Abdul Ghaffar Jakhrani through PC Muhammad Ishaque of PS Mouladad alongwith Lashchakas form/letter No.389 dated 24.07.2016, issued by ASI PS Mouladad for postmortem and report. The M.O. further deposed that on external examination he found following injuries on the dead body.
1. Lacerated punctured wounds three in number 01 cm each in diameter present at left lateral surface chest and abdomen, margins inverted (wound of entry).
2. Lacerated punctured wounds three in number 1 ½ cm each in diameter present at left frontal surface of chest and abdomen margins everted (wounds of exit of injury No.1).
3. Lacerated punctured wounds 7 cm in diameter situated at right arm, elbow, fore-arm clinically furcated posteriors surface margins inverted (wound of entry).
4. Lacerated punctured wounds 9 cm in diameter situated at laterally right arm, elbow and fore arm anterior surface margins everted (wounds of exit No.3).
5. Lacerated punctured wound 1cm in diameter situated t left hand dorsal surface margins inverted (wound of entry).
6. Lacerated punctured wound 1½ cm in diameter situated at left fore-arm anterior surface margins everted (wound of exit No.5).
7. Lacerated punctured wound 6cm in diameter situated right thigh and clinically fractured anterior surface margins inverted (wound of entry).
8. Lacerated punctured wound 7cm in diameter situated at right thigh margins everted (wound of exit No.7).
On internal examination of Thorax, the Medical Officer found walls, ribs &cartilages; Pleura, left lung, pericardium & heart and blood vessels were lacerated. On examination of Abdomen, he found walls, peritoneum, diaphragm, spleen were lacerated. The muscles bone joints were also lacerated at the site of injuries. The stomach of the deceased was lacerated and empty, while all other organs of the dead body were found healthy. As per his opinion the death of deceased Rizwan Ahmed had occurred due to shock &hemorrhage, as a result of injuries No.1 to 8, which individually and collectively were sufficient to cause death of the deceased in an individual and ordinary course of life. All the injuries were ante mortem in nature and were caused to the deceased by discharge of firearm. The probable time between injuries and death was spontaneously and the time between death and postmortem was about 3 to 5 hours. The accused and their advocate have not controverted that the death of deceased Rizwan Ahmed was not unnatural and evidence of eye witnesses and doctor is sufficient to prove that deceased has died due to unnatural death.It is observed that medical evidence is in the nature of supporting, confirmatory or explanatory of direct or circumstantial evidence, and is not “corroborative evidence” in sense the term is used in legal parlance for a piece of evidence that itself also has some probative force to connect the accused person with commission of the offence. Medical evidence by itself does not throw any light on the identity of the offender. Such evidence may confirm the available substantive evidence concerning certain facts including the seat of injury, nature of injury, cause of death, kind of weapon used in the occurrence, duration between injuries and death, and presence of an injured witness or the injured accused at place of occurrence, but it does not connect accused with commission of the offence. It cannot constitute corroboration for proving involvement of accused person in commission of the offence, as it does not establish identity of the accused person. Reliance can be placed upon cases of Yaqoob Shah v. State (PLD 1976 SC 53); Machia v. State (PLD 1976 SC 695); Muhammad Iqbal v. Abid Hussain (1994 SCMR 1928); Mehmood Ahmad v. State (1995 SCMR 127); Muhammad Sharif v. State (1997 SCMR 866); Dildar Hussain v. Muhammad Afzaal (PLD 2004 SC 663); Iftikhar Hussain v. State (2004 SCMR 1185); Sikandar v. State (2006 SCMR 1786); Ghulam Murtaza v. Muhammad Akram (2007 SCMR 1549); Altaf Hussain v. Fakhar Hussain (2008 SCMR 1103) and Hashim Qasim v. State (2017 SCMR 986). In the case in hand, the medical evidence is fully supported with ocular evidence in respect of injuries received by the deceased. Evidence of three eye-witnesses who are the natural witnesses of the incident is sufficient to hold that the prosecution has proved the case against the accused Mahoot @ Fayaz Khan.
12. The ocular account supported by the medical evidence is further corroborated from the evidence ofPW-7 ASI Muhammad Saifal who deposed that on 24.7.2016, he was posted as ASI PS Mouladad and was on duty when at about 1800 hours, complainant Khair Jan brought the dead body of deceased Rizwan at PS in the Datsun. He saw the dead body of the deceased and prepared such mashirnama in presence of mashirs Rafique Ahmad and Imran and prepared danistnama so also lashchakas form. He sent the dead body to hospital through PC Muhammad Ishaque for postmortem. On same date at about 2300 hours, PC Muhammad Ishaque brought last worn cloths of the deceased at PS and handed over the same to him in presence of mashirs. He prepared such memo and then sealed last worn cloths of the deceased. On 25.7.2016, the complainant came at PS at about 0900 hours and disclosed the facts of cognizable offence; hence he lodged his FIR and handed over the same to ASI Suhrab for further investigation. PW-8 SIP Muhammad Usman Malik deposed that on 26.07.2016, he was posted as SIP/Additional SHO at PS City Jacobabad and on that day, he alongwith his subordinate staff, namely PC Imtiaz and PC Asif duly armed with official weapons and police uniforms carrying investigation bag vide entry No.7 at about 0830 hours, left PS for patrolling. During patrolling they arrested accused Mahoot@ Fayaz Khan and Awais Ahmed S/O Mahoot@ Fayaz Khan R/O Mirwah and prepared such memo of arrest of accused in presence of mashirs PC Imtiaz and PC Asif. It is observed that at the time of arrest the crime weapons were not recovered from the accused persons.PW-6 (mashir) PC Imtiaz Ali Bhuttosupported the version of SIP Muhammad Usman in respect of the arrest of the appellants being the mashir.P.W-5 Imran(mashir) was examined who deposed that on 24.7.2016 at about 6-10 pm, on receiving information they went to PS Mouladad, where ASI Muhammad Saifal Jakhro was available at white Colour Datsun in which dead body of deceased Rizwan Ahmad was lying. The dead body has gray colour cloths and white colour ‘nara’. The dead body had injuries over left elbow, right hand and three injuries in shape of holes on right side, one fire arm injury on right feet in the shape of hole. The ASI prepared such memo in his presence and co mashir was Rafique. The ASI also prepared danistnama of dead body. Thereafter, the dead body was referred to hospital for postmortem. He further deposed that on same date viz 24.7.2016 at about 11-00 pm, ASI Saifal Jakhro was available with him and Muhammad Rafique at PS, when PC Muhammad Ishaque brought clothes of the deceased and handed over to ASI Saifal, who prepared such memo in his presence and co-mashir was Rafique. On 25.7.2016 at about 10-30 am, ASI Suhrab Odho alongwith the mashirs had inspected the place of incident on the pointation of the complainant where blood was available.Police secured the blood stained earth/mud and sealed the same. Police also secured 7 empties of KK from place of incident in his presence and co-mashir was Muhammad Rafique and prepared such mashirnama in their presence. These witnesses were cross-examined but their evidence has not been shattered by the defence counsel. The recovery of the blood stained earth and the empties of 7.62 from place of incident havenot beendenied by the accused/appellant.
13. The investigating officer during the investigation recovered blood stained earth/mud and empties of 7.62 of the weapon used by the appellant so also the crime weapon from the appellant. To prove the recovery as stated above the prosecution examined PW-9 ASI Suhrab Khan Odhowho deposed that on 25.7.2016, he was posted as ASI at PS Mouladad and on same date at about 0930 hours, he received FIR, danistnama, statement of PC Muhammad Ishaque, memo of last worn clothes of deceased from ASI Muhammad Saifal for further investigation. He kept such entry No.4. Thereafter, vide entry No.5, he left PS for inspection of place of incident alongwith complainant at about 0940 alongwith his subordinate staff. They reached at place of incident and inspected the same on pointation of the complainant, where they saw the blood stained earth for which the complainant disclosed that said blood was of the deceased Rizwan, which was secured by him and sealed the same. Then, he found seven empties of 7.62 bore which were secured by him in presence of mashirs Imran and Rafique. He then prepared such mashirnama in their presence. Thereafter, he recorded the statements u/s 161 Cr.P.C. of PWs Abdul Khalique and Yaseen at PS. He further deposed that on 26.7.2016, he received information from PS City Jacobabad that wanted accused Mahoot@ Fayaz Khan and Awais Ahmed S/O Fayaz Khan were arrested by them and they also informed that learned Civil Judge has conducted raid at PS and directed to produce said accused before Court of Sessions Judge Jacobabad on 27.7.2016. He then came at PS City Jacobabad, taken the custody of the accused and then on 27.7.2016, he produced the accused before the Court of Sessions, where the Court had directed to obtain the remand of the accused from the concerned Court, thereafter, he obtained remand of the accused from the Court of learned IInd J.M. and then returned back at PS, where he prepared description form of the accused and then recorded their statements. On 28.7.2016 at 1000 hours, he taken out accused from lockup for interrogation and then interrogated both accused persons who during interrogation became ready to produce the crime weapon alongwith vehicle used in crime, hence vide entry No.5 at about 1000 hours, he alongwith his subordinate staff namely PC Awal Khair, PC Rustam, PC Ali Nawaz in government mobile alongwith driver PC Noor Muhammad alongwith both accused persons left PS and at about 1030 hours, they reached near the house of accused Mahoot@ Fayaz Khan, where accused gave signal them for stopping the mobile hence they stopped the mobile and the accused led them to their house, where they saw one Indus Corolla car was available and the accused Mahoot @Fayaz Khan taken out the KK and DBBL gun which were available at the back seat of the car and produced before them. They unloaded the KK and found 10 live bullets were available, while DBBL gun was empty and was in working condition, for which the accused disclosed that the vehicle and weapons were same which were used in murder of Rizwan. He then prepared such mashirnama in presence of mashirs PC Awal Khan and PC Rustam. Thereafter, they alongwith recovered property and accused persons came at PS, where he kept his arrival entry No.8 at about 1200 hours and so also lodged two FIRs for offence u/s 23(i)(a) SAA, bearing crime No.58/2016 against accused Mahoot@ Fayaz Khan and 59/2016 against accused Awais Ahmad. On next date, he obtained remand of both accused persons in offence u/s 23 (i)(a) SAA. On same date, he issued letter to the SSP for permission to send the property to Forensic Science Laboratory and sending blood stained to Chemical Laboratory. Thereafter on 15.08.2016, he sent the blood stained mud to the Chemical Examiner after receiving permission and on 2.8.2016; he sent the weapons to ballistic expert. After receiving reports of chemical examiner and FSL in positive, he submitted challan. After completing usual investigation, he handed over the case papers to the SHO who submitted the challan. His evidence is further corroborated by the evidence of PW-10(mashir) PC Rustam Aliwho also supported the version of investigating officer in respect of inspection of dead body, place of incident and recovery of the articles involved in the case and the crime weapons.
14. It is observed that the recovery of crime weapon was effected from appellant Mahoot @ Fayaz Khan and a separate case was registered against him in which he was also convicted by the trial court such appeal is also preferred by the appellant and the same case would be decided separately on the basis of evidence so produced by the prosecution in that case. It is observed that non-recovery of a crime weapon is no ground to acquit the accused in view of the fact that all the prosecution witnesses supported the case of prosecution by deposing that the appellant along with other co-accused directly fired from the KK which hit the deceased and their direct evidence is further supported by medical evidence as the doctor who examined the deceased had found 8 separate firearm injuries, further corroborated by the recovery of the empties of 7.62 from the place of vardat. It is settled by now that where charge was proved by other direct, natural and confidence inspiring evidence, then non-recovery of crime weapon was not fatal to the prosecution case. Reliance is placed on the case of Sikander Teghani alias Muhammad Bux Teghani v. The State (2016 Y L R 1098).
15. The contentionsthat the witnesses are near relatives to deceased and are interested therefore their evidence cannot be relied upon, the contention raised in this regard carries no force, as the eye-witnesses have sufficiently explained the date, time and place of occurrence as well as each and every event of the occurrence wherein an innocent person was done to death brutally. Both the parties are known to each other as is evident from their evidence; therefore, there was no chance of mistaken identity of the appellant. It is observed that where the witnesses fall within the category of natural witnesses and detailed the manner of incident in a confidence-inspiring manner then only escape available with the accused/appellant is to satisfactorily establish that witnesses are not the witnesses of truth but “interested” one. An interested witness is not the one who is relative or friend but is the one who has a motive to falsely implicate an accused. Mere relationship of eye-witnesses with the deceased alone is not enough to discard testimony of the complainant and witnesses. In matters of capital punishment, the accused would not stand absolved by making a mere allegation of dispute/enmity but would require to bring on record evidence that there had been such a dispute/enmity which could be believed to have motivated the “natural witnesses” in involving innocent at the cost of escape of “real culprits”. In the instant case, the dispute over matrimonial affairs is allegedly shown by the complainant in the FIR against appellant Mahoot @ Fayaz Khan. Moreover, no tangible substance has been brought on record by the appellant to justify his false implication in this case at the hands of complainant party on account of previous enmity. Reliance is placed on thecase of Zulfiqar Ahmed & another v. State (2011 SCMR 492), wherein the Supreme Court of Pakistan has held as under:-
...It is well settled by now that merely on the ground of inter se relationship the statement of a witness cannot be brushed aside. The concept of ‘interested witness’ was discussed elaborately in case titled Iqbal alias Bala v. The State (1994 SCMR-01) and it was held that ‘friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused.
16. The counsel for the appellant had pointed out some minor contradictions in the evidence which in my view are not sufficient to discard evidence of three eye-witnesses who have fully supported the case of prosecution on every aspect. Their evidence is further supported by the medical evidence and the circumstantial evidence as discussed above. It is settled principle of law that where in the evidence, the prosecution established its case beyond reasonable doubt then if there arise some minor contradictions which always are available in each and every case as no one can give evidence like a pen-picture, hence the same are to be ignored. The reliance is placed on case of Zakir Khan V. The State (1995 SCMR 1793), wherein the Supreme Court of Pakistan has held as under:-
“13. The evidence recorded in the case further indicates that all the prosecution witnesses have fully supported each other on all material points. However, emphasis has been laid by Mr. Motiani upon the improvements which can be found by him in their respective statements made before the Court and some minor contradictions in their evidence were also pointed out. A contradiction, unlike an omission, is an inconsistency between the earlier version of a witness and his subsequent version before the Court. The rule is now well established that only material contradictions are to be taken into consideration by the Court while minor discrepancies found in the evidence of witnesses, which generally occur, are to be overlooked. There is also a tendency on the part of witnesses in this country to overstate a fact or to make improvements in their depositions before the Court. But a mere omission by witness to disclose a certain fact to the Investigating Officer would not render his testimony unreliable unless the improvement made by the witness while giving evidence before the Court has sufficient probative force to bring home the guilt to the accused.”
17. For what has been discussed above, I have arrived at the judicious conclusion that the learned trial Court on being finding the present appellant/accused Mahoot@ Fayaz Khans/o Abdul Ghafoor @ Morioas guilty of murder of the deceased, has rightly convicted and sentenced him and thus has committed no illegality or irregularity while passing the impugned judgment which even otherwise is based on sound reasoning, therefore, it does not call for any interference by this Court. Resultantly, instant criminal jail appeal in respect of appellant Mahoot@ Fayaz Khan s/o Abdul Ghafoor @ Morio being devoid of merits isdismissed.
18. Turning to the case of appellant Awais Ahmed none of the prosecution witness depose a single word against him in respect of his participation in the murder of deceased, only it is stated by them that accused Awais Ahmed was with accused Mahoot@ Fayaz Khan s/o Abdul Ghafoor @ Morio and was armed with DBBL gun but he had not used the same. The recovery of DBBL is also not helpful to the prosecution as it was not used by the appellant at the time of incident. The circumstance where the appellant was armed with DBBL gun had not used the same creates very serious doubt in respect of his involvement and his presence at place of incident at the relevant time.There is no evidence that the appellant Awais Ahmed hadshared common intention with the main accused who fired from KK upon the deceased. Reliance is placed on the case of SikandarAli and others v. The State (2019 YLR 1877),whereinthe Division Bench of this court has observed as under:-
“20. Turning to the case of appellants Hyder Ali and Oshaque Ali all the eye-witnesses examined before the trial court had not levelled any allegation against the appellants but only deposed to the extent of their presence at the spot at the time when appellant Sikandar Ali fired shots upon the deceased Muhammad Ayoob. They did not participate in the occurrence nor caused any injury to anyone. No evidence was produced by the prosecution that the appellants Hydar Ali and Oshaque Ali shared their common intention with the main accused Sikandar Ali for murdering deceased Muhammad Ayoob. No direct motive was alleged against these appellants by the prosecution. In light of these, all things we are of the view that the prosecution failed to prove the case against the appellants Hydar Ali and Oshaque Ali”.
19. The overall discussion concludedthat the prosecution has miserably failed to establish the guilt against present appellant Awais Ahmed beyond the 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 cases of Muhammad Mansha v.The State(2018 SCMR-772)and Naveed Asghar and 2 others v. The State (PLD 2021 SC 600).
20. The sequel ofthe above discussion is that the learned trial Court has not evaluated the evidence in its true perspectives and thus arrived at an erroneous conclusion byholding the present appellant Awais Ahmed as guilty of the offence.Consequently, instant Criminal jail Appeal in respect of appellant Awais Ahmed is allowed; the conviction/sentence awarded to the appellant by way of impugned judgment could not be sustained, it is set aside and he is acquitted of the charged offence. The appellant is in custody and therefore directed to be released forthwith in the present case if he is no more required in any other custody case.
21. The instant Criminal Jail Appeal is disposed of accordingly.
JUDGE