IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No.S-79 of 2019

Appellants:                    1). Abdul Jabbar s/o Bijar Khan @ Bahar Khan

                                        2). Ahsan Ahmed s/o Bijar Khan @ Bahar Khan,

Through Mr.Asif Ali Abdul Razzak Soomro, Advocate

Complainant:                 Baqa Muhammad Jagirani

Through Mr. Muhammad Afzal Jagirani, Advocate.

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

Date of hearing:            27.04.2023

Date of decision:           27.04.2023

JUDGMENT

IRSHAD ALI SHAH, J;- It is alleged that the appellants with rest of the culprits, after having formed an unlawful assembly and in prosecution of its’ common object, committed murder of Noorullah by causing him fire shot injuries by alleging him to be “Karo”, for that the present case was registered. The appellants and co-accused Imdad Ali joined the trial, they denied the charge and the prosecution to prove it, examined complainant Baqa Muhammad and his witnesses and then closed its’ side. The appellants and co-accused Imdad Ali in their statements recorded under Section 342 Cr.PC denied the prosecution’s allegation by pleading innocence by stating that the deceased was killed on account of tribal dispute with Chachar community and they have been involved in this case falsely by the complainant party in order to satisfy its dispute with them over the landed property; they did not examine anyone in their defence or themselves on oath. On conclusion of trial, co-accused Imdad Ali was acquitted while the appellants were convicted U/S. 302(b) PPC and sentenced to undergo imprisonment for life and to pay compensation of Rs.200,000/- each to the legal heirs of the deceased and in default whereof, to undergo simple imprisonment for three years; they were further convicted U/S.148 PPC and sentenced to undergo simple imprisonment for three years; all the sentences were directed to run concurrently with benefit of Section 382-B Cr.PC, by learned 1^st Additional Sessions Judge/ MCTC, Kandhkot, vide judgment dated 17.09.2019, which they have impugned before this Court by preferring the instant criminal appeal.

2.       It is contended by learned counsel for the appellants that they being innocent have been involved in this case falsely by the complainant party; the FIR of the incident has been lodged with unexplained delay of about two days; on investigation excepting appellant Abdul Jabbar, all the culprits involved in the incident were let-off by the police finding them to be innocent and on the basis of same evidence, co-accused Imdad Ali has been acquitted by learned trial Court. By contending so, he sought for acquittal of the appellants by extending them benefit of doubt.

3.       Learned Addl.P.G for the State and learned counsel for the complainant by supporting the impugned judgment have sought for dismissal of the instant criminal appeal by contending that the appellants have committed murder of an innocent person under the allegation of “Karap”; on arrest from one amongst them has been secured the crime weapon and they in fact have been dealt with leniently by learned trial Court.

4.       Heard arguments and perused the record.

5.       Soon after occurrence, complainant Baqa Muhammad by approaching the police related the incident; it was recorded in roznamcha under entry No.15, dated 29.12.2014 at P.S B-Section Kandhkot; whereby it was stated by him that the appellants and others after inviting his  brother  Noorullah to have a Tea with them at their otaq have committed his murder by causing him fire shot injuries under the garb of “Karap”. By such roznamcha entry, no specific role was attributed to any of the culprit involved in the incident; even otherwise, it does not contain name of any of the witness to the incident. On 31.12.2014, the complainant lodged formal FIR of the incident with police, whereby he not only disclosed the names of witnesses to the incident but attributed role of causing fire shot injures to the appellants and others specifically. By such narration, he attempted to stand by his version at trial, which obviously was an act of improvement to what he has already narrated to the police while relating the incident in first instance which was recorded in roznamcha, therefore, his version being doubtful in its character could hardly be relied upon. PW Thariyo Khan was introduced in investigation by the complainant by way of lodgment of FIR with delay of about two days; therefore, his version too is to be judged with doubt. PW Ali Muhammad has not been examined by the prosecution; it was said that he has died; however, nothing has been brought on record which may suggest that he actually died before his examination. On asking, it was stated by I.O/ASI Abdul Malik that all the memos and 161 Cr.PC statements of the PWs were written by WHC of P.S B-Section Kandhkot on 29.12.2014 at his dictation. If it was so, then it was two days prior to lodgment of the FIR. At least, 161 Cr.PC statements of the PWs ought to have been recorded after formal registration of FIR. Even otherwise, there is nothing in any of the memo which may suggest that those were written by WHC P.S    B-Section Kandhkot at dictation of I.O/ASI Abdul Malik, therefore, investigation of the present case on his part was only to the extent of table. It was stated by I.O/SIP Muhammad Sadiq that on investigation, he apprehended the appellants, on inquiry appellant Abdul Jabbar admitted his guilt before him. If for the sake of arguments, it is believed that such admission was actually made by appellant Abdul Jabbar before the said I.O/SIP, even then the same could not be used against him as evidence in terms of Article 39 of Qanun-e-Shahadat Order, 1984. It was further stated by the said I.O/SIP that on 17.01.2015, appellant Abdul Jabbar led to recovery of Kalashnikov allegedly used by him in commission of incident; it was duly kept in sack by side of water course, it was secured by him under memo prepared in presence of mashirs PC Shoukat Ali and PC Rasheed Ahmed. None amongst them is examined by the prosecution in present case to prove such recovery. On asking, he was fair enough to admit that on investigation, he found appellant Ahsan Ahmed,     co-accused Imdad Ali, absconding accused Sultan Ahmed and Farooq Ahmed to be innocent. By declaring innocent, he disbelieved the version of the complainant in his FIR that they actually participated in commission of the incident. The Kalashnikov allegedly secured from appellant Abdul Jabbar on 17.01.2015 was sent to ballistic expert on 23.01.2015 together with the empties allegedly secured from the place of incident, which ought to have been sent separately, therefore, such recovery, if any, could hardly improve the case of prosecution. In these circumstances, it would be safe to conclude that the prosecution has not able to prove its case against the appellants beyond shadow of reasonable doubt and to such benefit they too like co-accused Imdad Ali are found entitled.

6.       In case of Imran Ashraf and others vs. The State (2001 SCMR-424), it has been observed by the Apex Court that;

“Section 154, Cr.P.C. lays down procedure for registration of an information in cognizable cases and it also indeed gives mandatory direction for registration of the case as per the procedure. Therefore, police enjoys no jurisdiction to cause delay in registration of the case and under the law is bound to act accordingly enabling the machinery of law to come into play as soon as it is possible and if first information report is registered without any delay it can help the investigating agency in completing the process of investigation expeditiously”.

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

8.       In case of Sardar Bibi and others vs. Munir Ahmed and others  (2017 SCMR 344), it has been held by the Apex Court that;

“When the eye-witnesses produced by the prosecution were disbelieved to the extent of one accused person attributed effective role, then the said eye-witnesses could not be relied upon for the purpose of convicting another accused person attributed a similar role without availability of independent corroboration to the extent of such other accused”.

9.       In case of Muhammad Mansha vs The State (2018 SCMR 772), it has been held by the 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".

10.     In view of facts and reasons discussed above, the conviction and sentence awarded to the appellants by way of impugned judgment are set-aside, consequently, they are acquitted of the offence, for which they were charged, tried, convicted and sentenced by learned trial Court; they shall be released forthwith, if are not required to be detained in any other custody case.

11.     The instant criminal appeal is disposed of accordingly.

            JUDGE