2020 PLP 1769 (MLD)

IRSHAD ALI SHAH, J.

The instant Criminal Appeal has got somewhat chequerd facts. It is alleged by complainant Khatoo Mal that his son Sarwanand aged about 10 years was taken by his uncle Basroo to a festival at Mirpur Mathelo, there he became drowsy, therefore, appellant and others prepared to arrange for his sleep, they took Sarwanand with them and then committed his murder by causing him iron rod blows, for that he lodged an FIR Crime No. 182/2001 with police station Mirpur Mathelo. It was disposed under "A" class by Magistrate having jurisdiction, such disposal of his FIR was impugned by the complainant before this Court by preferring Constitutional Petition No. S-354/2002, it was disposed of with direction to the complainant to file a direct complaint of incident before the Court having jurisdiction. It was filed accordingly by the complainant, it was brought on record and on conclusion of trial, the appellants and others (Shri alias Ashok, Arbelo and Balam) for having committed an offence punishable under section 302 read with section 34, P.P.C. were convicted and sentenced to undergo imprisonment for life by learned IVth Additional Sessions Judge Mirpur Mathelo, such conviction was impugned by them by way of filing a Criminal Appeal before this Court, it was accepted, consequently the case was remanded to learned trial Court with direction to record evidence of Basroo and Ashok as court witnesses and then to make disposal of the case afresh in accordance with law. It was done and consequently learned trial Court acquitted co-accused Balam and Shri alias Ashok, while convicted and sentenced the appellant and co-accused Arbelo to undergo imprisonment for life and to pay compensation of Rs.200,000 for having committed an offence punishable under section 302(b), P.P.C. for committing Qatl-e-amd of Sarwanand. Such conviction was impugned by them before this Court by way of filing instant Cr. Appeal, during pendency whereof, appellant Arbelo was acquitted by this Court by way of compromise while the appeal preferred by appellant Ramesh is now being disposed of.

2. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the complainant in order to satisfy his professional grudge with him; the complaint has been lodged with the delay of five months; PW Basroo has not supported the case of prosecution, on same set of evidence co-accused Shri @ Ashok and Balam have been acquitted while the appellant has been convicted by learned trial Court without lawful justification which is against the spirit of natural justice. By contending so, he sought for acquittal of the appellant.

3. Learned APG for the State and learned counsel for the complainant by supporting the impugned judgment have sought for dismissal of the appeal of the appellant.

4. I have considered the above arguments and perused the record.

5. Complainant Khatoo Mal is not eyewitness of the incident, as such his evidence could hardly be relied upon. PW Basroo who allegedly took deceased Sarwanand to festival has not supported the case of the complainant by stating that "he has seen none killing Sarwanand". The FIR of the incident lodged by the complainant has been disposed of under "A" class by the police. The direct complaint has been filed by the complainant with delay of about seven months, the statements of the PWs in preliminary enquiry have been recorded with delay of 10 days to filing of the direct complaint, such delay in filing of direct complaint and recording statements of PWs in preliminary enquiry could not be over looked. In theses circumstance evidence of PWs Piyaro Mal and that of Ashok Kumar which even otherwise is inconsistent on some points, is not appearing to be enough to maintain conviction recorded against the appellant. The conviction of one set of accused and acquittal of other set of accused, on basis of same evidence even otherwise could not be approved.

6. In case of Mehmood Ahmed and others v. the State and another (1995 SCMR 127), it was observed by the Hon'ble 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".

7. In case of Abdul Khaliq v. 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."

8. In case of Sardar Bibi and others v. Munir Ahmed and others (2017 SCMR-344), it was held by the Hon'ble 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 Tarique Bashir v. The State (1995 SCMR 1345), it has been held by Hon'ble Apex Court that; "For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt- if a simple circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right."

10. In view of the facts and reasons discussed above, the impugned judgment is set-aside, consequently, the appellant is acquitted of the offence for which he was charged, tried and convicted by learned trial Court, he is in custody and shall be released forthwith in the present case.

11. The instant appeal is disposed of in above terms. SA/R-33/Sindh Appeal allowed.