IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No.S-43 of 2022

Appellant:                    Wali Muhammad s/o Ghulam Qadir Solangi,

Through Mr.Abid Hussain Kalhoro, Advocate

Complainant:               Mst.Najma w/o Shahzado

Through Mr. Muhammad Afzal Jagirani, Advocate.

The State:                      Through Mr. Aitbar Ali Bullo, D.P.G,

Date of hearing:           04.07.2024

Date of decision:           04.07.2024

JUDGMENT

IRSHAD ALI SHAH, J;- It is alleged that the appellant with the rest of the culprits, in furtherance of their common intention, committed murder of Shahzado by causing him fire shot injuries, for which the present case was registered. At trial, the appellant denied the charge, and the prosecution to prove the same, examined all nine witnesses, then closed its side. The appellant in his statement recorded under Section 342 Cr.PC denied the prosecution’s allegation by pleading innocence;  he did not examine anyone in his defence or himself on oath. On completion of the trial, the appellant was convicted u/s.302(b) r/w Section 34 PPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.500,000/- payable to the legal heirs of the deceased as compensation and in default in payment whereof, to undergo simple imprisonment for six months with benefit of Section 382-B Cr.PC, by learned Additional Sessions Judge, Mehar, vide judgment dated 15.08.2022, which he has impugned before this Court by preferring the instant criminal appeal.

2.         It is contended by learned counsel for the appellant that the appellant is innocent and has been involved in this case falsely by the complainant; the FIR of the incident has been lodged with an unexplained delay of about three days and evidence of the witnesses being doubtful has been believed by learned trial Court without lawful justification, therefore, the appellant is entitled to be acquitted of the offence for which he has been charged and convicted, by extending him the benefit of the doubt.

3.         Learned D.P.G for the State and learned counsel for the complainant by supporting the impugned judgment have sought dismissal of the instant criminal appeal by contending that the appellant has murdered an innocent person only to satisfy his grudge with him over the property and on arrest from him has been secured the pistol which was used by him in commission of the incident.

4.         Heard arguments and perused the record.

5.         It was stated by the complainant Mst.Najma that 23.02.2020 when he, and her husband Shahzado were sleeping in their house; there at about 10.00 pm, came the appellant, accused Juman and two unknown culprits, duly armed with pistols; with whom she identified under the light of bulbs. Surprisingly, the memo of the arrest does not indicate the availability of bulbs at the venue of occurrence. Even otherwise, the identity of the culprits under the light of bulbs is a weak piece of evidence. It was further stated by her that at the instance of accused Juman, the appellant fired at her husband who by sustaining such fire on his head fell on the cot and died; on her cries, there came PWs Mst.Abida, Anwar Ali, and other inmates of the house; also saw the appellant and others who then made their escape; the police was intimated about the incident; ASI Nauman Khan Soomro with his police party came to the place of the incident and undertook investigation and then referred the dead body of deceased to Taluka Hospital, Mehar, for postmortem. As per PW Dr.Muhammad Khan who conducted the postmortem on the dead body of the deceased, the time between injuries and death was about one hour; if it is believed to be so, then it belies the complainant that the deceased died at the spot. PW Mst.Abida has not been examined by the prosecution for no obvious reason. The presumption that could be drawn from her non-examination in terms of Article 129(g) of Qanun-e-Shahadat Order, 1984, would be that she was not going to support the case of the prosecution. PW Anwar Ali on account of his failure to support the case of prosecution by saying that the appellant was not the real culprit of the incident was declared hostile; his evidence could not be overlooked. It was stated by PW ASI Nauman, who conducted the initial investigation of the case, that on 23.02.2020, he was posted at P.P Sindhi Butra of P.S Radhan; he was intimated on cell phone by PW Anwar Ali that the deceased had been done to death in his house; such intimation was recorded by him in roznamcha under entry No.09; it does not contain the name of any culprit, which appears to be surprising. The disclosure of the name of the appellant and others by the complainant in her FIR which was lodged with a delay of about three days to the actual incident, prima facie suggests consultation and deliberation. As per the memo, the empty was secured from the place of the incident. Nothing has been brought on record that may indicate that such empty has been sent to the Forensic Expert for its matching with the pistol allegedly secured from the appellant by I.O/Inspector Manzoor Ahmed. It was stated by I.O/Inspector Manzoor Ahmed that on arrest the appellant confessed his guilt before him. If for the sake of arguments, it is believed that such confession was made by the appellant before the said I.O, even then the same being extra judicial in terms of Article 39 of Qanun-e-Shahadat Order, 1984, could not be used against him as the evidence. The recovery is alleged by the appellant to have been foisted upon him by the police; the same even otherwise, could not be taken as a conclusive piece of evidence to believe that the prosecution has proved its case against the appellant beyond doubt when the ocular account against the appellant is found to be doubtful. The appellant in his statement recorded u/s.342 Cr.PC has pleaded innocence by stating that the complainant has murdered the deceased in collusion with absconding accused Raja; his such plea could not be lost sight of as Mst.Nusrat Khatoon, who happened to be the daughter of the deceased, arranged for the exhumation of dead body of his father by alleging his death at the hands of the complainant.

6.         The discussion involved the conclusion that the prosecution has not been able to prove its case against the appellant beyond the shadow of a doubt and to such benefit, he is found entitled.

7.       In the 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”.

8.         In the 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 the 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.       Having discussed above, the conviction and sentence awarded to the appellant by way of impugned judgment are set-aside, consequently, he is acquitted of the offence, for which he is charged, tried, convicted, and sentenced by learned trial Court; he shall be released forthwith, if is not required to be detained in any other custody case.

11.       The instant criminal appeal is disposed of accordingly.

           JUDGE

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