IN THE HIGH COURT
OF SINDH, BENCH AT SUKKUR
Criminal Jail Appeal No.S-49 of 2021
Appellants Muhammad
Nawaz son of Lal Muhammad and Ghulam
Mustafa son of Mir Muhammad both bycaste Magsi through
Mr. Rukhsar Ahmed Junejo advocate.
The Complainant. Through
Mr. Shafique Ahmed
Leghari advocate.
The State Through Mr. Aftab Ahmed Shar, Additional Prosecutor General.
Date of hearing 06-11-2023
Date of decision 06-11-2023
J U D G M E N T
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 caused hatchets injuries to complainant Abdul Sattar, Muhammad
Mithal, Dhani Bux and Abdul Hameed with intention to commit their murder;
Muhammad Mithal died of such injuries, for that the present case was
registered. At trial, the appellants and co-accused Lal
Muhammad, Pervaiz, Noor Muhammad, Nisar
and Muhammad Ibrahim were charged for the said offence, which they denied. The
prosecution in-order to prove the same, examined in
all seven witnesses and then closed its side. On conclusion of trial co-accused
Lal Muhammad, Pervaiz, Noor
Muhammad, Nisar and Muhammad Ibrahim were acquitted,
while the appellants were convicted u/s 302 (b) PPC and sentenced to undergo
imprisonment for life as Ta’zir and to pay compensation of Rs. 200,000/- (Two las) each to the legal heirs of the said deceased; the
benefit of section 382(b) Cr.P.C was denied to the appellants for the reason
that they have never remained in jail by
learned Ist Additional Sessions Judge/(MCTC-I) Sukkur vide judgment dated 22-06-2021,
which they have impugned before this Court by preferring the instant Crl. Jail
Appeal.
2. It is contended by
learned counsel of the appellants that the appellants being innocent have been
involved in this case falsely by the complainant party in order to satisfy with
them its dispute over landed property and on the basis of same evidence five of
the co-accused have already been acquitted by learned trial Court; therefore,
the appellants are entitled to their acquittal by extending them benefit of
doubt. In support of his contention, he relied upon case of Muhammad Imran Vs. The
State (2020 SCMR 857).
3. Learned APG for
the State and learned counsel for the complainant by supporting the impugned
judgment have sought for dismissal of instant Crl. Jail Appeal by contending
that the case of the appellants is distinguishable to that of the above named
acquitted accused.
4. Heard arguments
and perused the record.
5. It was stated by
complainant Abdul Sattar and PW Dhani Bux that on 16-11-2018 they, deceased
Muhammad Mithal and PW Abdul Hameed were working in their field, there at about
2-30 pm time, came the appellants and above named co-accused; thereafter at the
instigation of accused Lal Muhammad, the appellants
caused hatchets injuries to Muhammad Mithal on his head while they and PW Abdul
Hameed were caused hatchets injuries by accused Noor Muhammad, Nisar and others; on their cries the co-villagers came
running, while appellants and others fled away. No co-villager is examined. It
was further stated by them that they went at PS Salehpat, their injuries were
noticed and then they were referred to Taluka Hospital Rohri and then to Civil
Hospital Sukkur for treatment of their injuries and certificate, Muhammad
Mithal was referred to Chandka Medical Hospital Larkana, he died of such
injuries there on 19-11-2018; they brought his dead body and after post mortem,
it was buried and then they lodged report of the incident with PS Salepat. It was lodged on 20-11-2018; it was with delay of
four days to the incident and one day to actual death of the deceased. Such
delay could not be overlooked. If narration made by the complainant and PW
Dhani Bux is believed to be true then deceased Muhammad Mithal has sustained
two injuries on his head, those obviously have been attributed by them to the
appellants. It was stated by medical officer Dr. Pervaiz Akhtar that deceased
Muhammad Mithal was found sustaining single injury on right side parietal
region of his skull. Memo of injuries prepared by HC Malik Dino also speaks of
single injury to the deceased on his head. Who amongst the appellants actually
caused that single injury to the deceased, it is not clear. On asking it was
stated by PW Dhani Bux that his 161 Cr.P.C statement was recorded by the police
on 21-11-2018; it was with delay of one day even to lodgment of FIR. No
plausible explanation to such delay is offered. PW Abdul Hameed on medical
examination was sustaining injuries with some hard blunt substance. It is
contrary to the narration made by the complainant and PW Dhani Bux, who
insisted that he too was caused injury with hatchet. Probably for this reason,
he was not examined by the prosecution under the deception that he is unable to
make statement. Anyway, benefit of his non-examination could only be resolved
in favour of the appellants. It was stated by I.O/ASI Sain Dad that on
investigation, he visited the place of incident, prepared such memo; obtained
the clothes of the deceased, prepared such memo and then the investigation of the
case was transferred to I.O/SIP Yasir Khoso, he too has not been examined by
the prosecution. It was stated by I.O/Inspector Shoukat Ali Arain that on
investigation he found appellant Ghulam Mustafa and co-accused Muhammad Ibrahim
as innocent and placed their names in column No.II of
the charge sheet. Recovery of the hatchet from the place of incident could
hardly be made a reason to maintain the conviction against the appellants when
evidence of the witnesses against them has been found to be doubtful and
untrustworthy. By awarding no punishment to the appellants for offence
punishable u/s 324, 504, 148 PPC, they impliedly have been acquitted for such
allegations even by learned trial Court. The appellants in their statements
recorded u/s 342 Cr.P.C have denied the prosecution’s allegation by pleading
innocent by stating that they have been involved in this case falsely by the
complainant only to satisfy their dispute with them over landed property. On
the basis of same evidence, five of the co-accused have
been acquitted by learned trial Court, while the appellants have been convicted
probably under influence of the counter version of the incident, ignoring the
fact that the initial burden to prove its case lies upon the prosecution.
6. The conclusion
which could be drawn of the above discussion would be that the prosecution has
not been able to prove its case against the appellants too beyond shadow of
doubt and to such benefit, they too are found entitled.
7. In case of Mehmood Ahmed & others vs. the State
& another (1995 SCMR-127), it has been held by the Apex Court that;
“Delay of two hours in lodging the FIR
in the particular circumstances of the case had assumed great significance as
the same could be attributed to consultation, taking instructions and
calculatedly preparing the report keeping the names of the accused open for
roping in such persons whom ultimately the prosecution might wish to
implicate”.
8. In case of Muhammad
Jamil vs. Muhammad Akram
and others (2009 SCMR 120), it has been held by the Apex
Court that;
“When the direct
evidence is disbelieved, then it would not be safe to base conviction on
corroborative or confirmatory evidence.”
9. In case of Sardar Bibi and others
vs. Munir Ahmed and others (2017 SCMR-344),
it has been held by the 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”.
10. In case of Abdul Khaliq vs.
the State (1996 SCMR 1553), it was observed
by Hon’ble Court that;
“----S.161---Late recording of statements of the prosecution
witnesses under section 161 Cr.P.C. Reduces its value to nil unless delay is
plausibly explained.”
11. In the case of Muhammad Mansha vs. The State (2018
SCMR 772), it was 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".
12. In view of the
facts and reasons discussed above, the conviction and sentence awarded to the
appellants under impugned judgment are set aside, 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 not required to be detained
in any other custody case.
13. Above are the
reasons of short order of even date whereby the instant Criminal Jail Appeal
was allowed.
J
U D G E
Nasim/P.A