ANWAR PITAFI Versus State
MUHAMMAD IQBAL MAHAR, J.--- Present appeal is directed against the judgment dated 11.08.2014 passed by learned IIIrd Additional Sessions Judge, Mirpur Mathelo, in Sessions Case No.211 of 2011, arising out of Crime No.46/2010 of Police Station, Dad Leghari, whereby the appellant was convicted for offence under section 302(b), read with section 34, P.P.C. and sentenced to suffer R.I for 'Life' as Tazir and to pay Rs.50,000/- to be paid equally to the legal heirs of deceased being compensation as required under section 544-A, Cr.P.C. and in case of default thereof to suffer S.I for 06 months. However, benefit of section 382-B, Cr.P.C. was extended to him.
2. Precisely, prosecution case is that Mst. Allah Jiwayee was sister of complainant Attur. About 12/13 years back she was married with Sarwar Pitafi but she was issue less. Her husband Sarwar, always used to maltreat her. On 22.12.2010, Mst. Allah Jiwayee sent a message to complainant to take her away as her husband has maltreated her. The complainant along with his brother Akber and cousin Abdul Raheem went to the house of Mst. Allah Jiwayee for taking her where her husband Sarwar was present. Mst. Allah Jiwayee while weeping complained to the complainant that Sarwar has unnecessarily maltreated her, therefore, she may be taken to his house. Accused Sarwar abused Mst. Allah Jiwayee and went outside the house. Still the complainant party was there and Mst. Allah Jiwayee was standing in the courtyard of the house, it vas 6.00 p.m. when accused Sarwar armed with Pistol, Anwar (appellant), Akram and Budho Pitafi armed with guns came there. Accused Sarwar made direct fire of pistol upon Mst. Allah Jiwayee with intention to kill her, which hit her, she raised cries and fell down. Complainant party also raised cries but appellant Anwar, absconding accused Akram and Budho made straight firing upon them with intention to kill but they saved themselves. Thereafter, all the accused persons went away towards eastern side. The complainant party did not follow the accused due to fear but went over Mst. Allah Jiwayee and found her sustaining fire arm injuries on her body. She was bleeding and was dead. Due to odd hours of night, complainant did could not arrange vehicle and early in the morning they brought the dead body at Taluka Hospital Mirpur Mathelo for postmortem and informed the Police of Dad Leghari. After postmortem, the complainant sent dead body to village and himself went at PS and lodged the FIR on 23.12.2010 at 1000 hours.
3. After usual investigation, the challan was submitted before the Court of law. The learned trial Court completed all legal formalities and framed formal charge against the appellant at Ex.06, to which he pleaded not guilty and claimed trial, such plea was obtained at Ex.07.
4. To substantiate the charge, prosecution examined PW-1, complainant Attur at Ex.11, who produced FIR at Ex.11-A, PW-2. Akber Ali at Ex.12. PW-3. Abdul Raheem at Ex.13, PW-4 DSP Fida Hussain at Ex.14, who produced roznamcha entry, memo of inspection of dead body, inquest report, memo of place of wardat, memo of blood stained clothes of deceased Mst. Allah Jiwayee, letter, Chemical examiner's report at Ex.14-A to 14-H. PW-5 Sikandar Ali at Ex.15. PW-06, WMO Dr. Zaib-ul-Nisa at Ex.16 who produced postmortem report at Ex.16-A, PW-7 Tapadar Wahid Bux at Ex.17, who produced sketch of place of wardat at Ex. 17-A. PW-08 Inspector Kareem Bux at Ex.18, PW-09 Sub-Inspector Budho Khan at Ex.19, PW-10 Qadir Bux at Ex.20, who produced receipt at Ex.20-A and PW-11 ASI, Ashique Ali at Ex.22. Thereafter, learned ADPP closed the prosecution side through statement at Ex.24.
5. After conclusion of prosecution evidence, learned trial Court recorded statement of the appellant-accused as required under section 342, Cr.P.C. at Ex.25, in which he denied the prosecution allegations and claimed his innocence, however, neither he examined himself on oath nor produced any witness in defence.
6. The learned trial Court after hearing learned counsel for appellant, learned ADPP for the State and appraising the evidence passed impugned judgment, which has been impugned through instant Jail Appeal.
7. Learned Counsel for the appellant contended that the appellant is innocent and has falsely been involved by the complainant with mala fide intention; that the impugned judgment passed by learned Judge is against the facts of case and law; that there is delay of 16 hours in lodging the FIR which shows that the incident is un-witnessed one and the prosecution story has been concocted; that the prosecution evidence consists of chance and interested witnesses and none from the village has been cited as witness of the case; that the role of firing upon deceased has been attributed to absconding accused Sarwar and the allegation against the appellant and remaining absconding accused is of in-effective firing; that the role of firing by the appellant has been belied by memo of wardat, according to which only one empty of .30 bore was recovered from place of incident; that there are material contradictions in the evidence of witnesses which create serious doubt. She lastly concluded that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt hence the appellant is entitled for acquittal. In support of her arguments, learned counsel for the appellant relied upon case of Muhammad Ali v. The State (2017 SCMR 1468) and Arshad Khan v. The State (2017 SCMR 564).
8. Conversely, learned Deputy Prosecutor General opposed the instant appeal and submitted that the appellant is real culprit, he in furtherance of common intention with his brother, absconding accused Sarwar, committed the murder of innocent lady; that all the witnesses have implicated the appellant in their evidence with specific role. Lastly, he submitted that the prosecution has proved its case against the appellant beyond shadow of doubt, hence he has rightly been convicted and the impugned judgment does not call for any interference by this Court.
9. I have considered the arguments advanced by learned counsel for the appellant, learned Deputy Prosecutor General and have perused the material available on record. The incident has occurred on 22.12.2010 at 6.00 p.m. and the FIR was lodged on 23.12.2010 at 1000 hours, after 16 hours of the incident, hence possibility of exaggeration of number accused after consultation can not be ruled out.
10. The motive of the incident is that absconding accused Sarwar was annoyed with his wife, the deceased and as per prosecution evidence she complained her brothers against her husband Sarwar that he has maltreated her and asked her brothers to take her away but nothing has been alleged against the appellant, hence the appellant has no concern with the motive.
11. The prosecution witnesses in their evidence nominated four persons as accused, out of them role of firing upon deceased Mst. Allah Jiwayee is attributed to absconding accused Sarwar, the husband of the deceased, while allegation against the appellant is that he along with two other absconding accused fired from their guns upon complainant party but role of firing by the appellant is not supported by the memo of wardat, according to which only one empty of .30 bore was recovered from the place of incident and not a single empty of .12 bore, allegedly fired by the appellant, was recovered, which creates doubt with regard to the part allegedly played by the appellant in the commission of offence. Furthermore, no crime weapon was recovered from the possession of the appellant, which connect him with the commission of offence.
12. For what has been discussed above I come to the conclusion that the prosecution has miserably failed to prove its case against the appellant accused beyond reasonable doubt and it is settled proposition of law that for giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts, if there is a single circumstance which creates reasonable doubt about the guilt of the accused, then the accused will be entitled to the benefit. In this respect, reliance can be placed upon case of Muhammad Mansha v. The State reported in 2018 SCMR 772, wherein the honourable Supreme Court has held 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 be 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". Reliance in this behalf can be made upon the cases of Tarique Parvez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Mohammad Akram v, The State 2009 SCMR 230) and Mohammad Zaman v. The State (2014 SCMR 749)."
13. Keeping in view the above facts and circumstances of the case and the case law referred above, benefit of doubt was extended in favour of the appellant and as a consequence whereof instant Jail appeal was allowed by my short order dated 19.11.2018, whereby the appellant was acquitted of the charge and he was directed to be released forthwith if not required in other case. The above are the reasons of my short order.
SA/A-139/Sindh Appeal allowed.