WAZIR Versus State
IRFAN SAADAT KHAN, J.--- This Jail Petition is directed against the judgment passed by the High Court of Sindh, Circuit Bench, Larkana in Criminal Jail Appeal No. S-26 of 2019 dated 27.11.2020, whereby the judgment passed by the Trial Court in Sessions Case No.897 of 2009 dated 09.04.2019, was upheld. The latter judgment declared Sadar alias Sadaruddin, son of Nourez Khan Lolai, and Wazir, son of Hakim Lolai, (the "petitioner" ) guilty of the offence under section 302(b) of the Pakistan Penal Code, 1860 ( "P.P.C." ), and sentenced them to imprisonment for life, with a direction to each for payment of Rs.2,00,000/- as compensation to the legal heirs of the deceased-Sadoro Lolai, under section 544-A of the Code of Criminal Procedure, 1898 ( "Cr.P.C." ), or in default thereof to undergo simple imprisonment ( "S.I." ) for six months. They were, however, extended the benefit under section 382-B of the Cr.P.C., whereas the prosecution's failure to prove its case against the co-accused, namely, Nourez Khan, Mullan Soomar and Muhammad Hassan, resulted in their acquittal. It would not be out of place to mention that the accused Sadar alias Sadaruddin has died in jail on 26.10.2021 and the proceedings against him have already been held to have become infructuous by this Court vide order dated 05.11.2024.
2. Briefly stated the facts of the case, as per the FIR bearing No.118/2009, registered at Police Station Dakhan District Shikarpur, Sindh at 10:00 a.m. on 28.11.2009, are that a grievous murder took place on 28.11.2009 at 09:00 a.m. As per the said report, the complainant along with his brother Abdul Majeed, maternal uncle Ghulam Muhammad, and other uncle Sadoro Lolai were going to his land when, at about 09:00 a.m., Shareef alias Tiki, Wazir (the present petitioner) and Sadar alias Sadaruddin, duly armed with Kalashnikovs, along with Muhammad Hussain and Nourez, armed with guns, as well as Mullan Soomar Lolai armed with a Lathi approached them. MuIlan Soomar instigated the other accused to commit murder of the accused party, upon which, all the accused who were armed with Kalashnikovs fired directly at Sadoro, hitting him. After crying out, Sadoro fell to the ground, while the other accused persons fired into the air to spread terror and cause harassment. There, the complainant party requested the accused to spare them in the name of the Holy Quran, and then the accused went away whilst making aerial fire. When the complainant party attended to Sadoro they saw that he had sustained firearm injuries to the head, the right-side of the chest, below the right-side of his chest and above the right-side of the chest. Blood was flowing profusely from Sadoro's body, and he died on the spot. Is it further averred in the FIR that the accused also took a rifle and a Nokia mobile phone along with them as they fled. The complainant party then arranged conveyance and brought the dead body of Sadoro to the Police Station, where they lodged the present FIR against the accused for murdering Sadoro with deadly weapons and for the aerial firing upon the others in the complainant party with the common intention to kill them. It was also reported that the accused had taken away a rifle and a Nokia mobile phone belonging to the deceased.
3. The necessary prosecution proceedings took place and thereafter, the matter proceeded before the Trial Court in the above-referred matter which had as many as seven witnesses examined. The witnesses were duly cross-examined by the other side and thereafter the Trial Court arrived at the conclusion that Sadar alias Sadaruddin and Wazir were responsible for committing the murder of Sadoro and snatching the rifle and Nokia mobile phone. The two were accordingly convicted and sentenced in the terms supra . The High Court, as explained above, also thrashed out the matter in detail and thereafter, vide the above-referred judgment, upheld the judgment of the Trial Court by affirming the convictions and the sentences awarded by the Trial Court.
4. Ms. Aisha Tasneem, ASC, has appeared on behalf of the petitioner and submitted that there is no motive on the part of the petitioner Wazir to murder Sadoro, as it is an admitted position that there was no enmity between the parties prior to the incident. She stated that under similar circumstances, the co-accused, namely, Nourez Khan, Mullan Soomar and Muhammad Hussain were acquitted by the Trial Court, and no appeal against the order of their acquittal was filed by the complainant before the High Court. She stated that all the witnesses were relatives of the complainant party and no independent witness was produced in the instant matter to support the version of the complainant party. She also pointed out that there is a major contradiction in the medical evidence, as it was stated that the deceased, Sadoro, had received pellet injuries, whereas, according to the FIR, he was fired at with Kalashnikovs.
5. Despite proper service, no one has appeared on behalf of the complainant, nor was any intimation received.
6. On the other hand, Mr. Saleem Akhtar Buriro, Additional Prosecutor General, Sindh has appeared on behalf of the State and supported the judgments of the Trial Court and the High Court. He stated that concurrent findings are against the present accused; that the FIR was lodged promptly; that specific role was attributed to the accused; and, that ocular evidence, supports the medical evidence. He further stated that minor contradictions cannot wash away the case built up by the prosecution. According to him, the witnesses were thoroughly cross-examined and their depositions had remained unshaken. He, therefore, stated that in view of these factors, which have adequately been thrashed out by both the courts below, the present petitioner does not deserve any leniency hence, the convictions and sentences awarded to him by the Trial Court and upheld by the High Court may, therefore, be confirmed and this petition, being without merit, may be dismissed.
7. We have heard the learned counsel for the petitioner and the learned State counsel. We have also perused the available record minutely; the judgments passed by the Courts below and the law on the subject.
8. The statements of Dr. Anil Kumar (PW-1), the medical officer conducting the deceased's postmortem examination, reveal that in his assessment a " firearm weapon was used " to cause the injuries leading to death. He stated that the weapon " discharged the pellets " followed by " I have not recovered any pellet from the dead body of the deceased ". In our view, this puts a dent in the case of the prosecution, since it has been mentioned in the FIR that the deceased-Sadoro was shot with Kalashnikovs held by the accused, namely Saddar, Wazir, and Sharif and not a shotgun. The deposition of Muhammad Amin (PW-2), the complainant, also reveals that neither he nor the other prosecution witnesses received any pellet injuries due to the alleged armed assault made by the accused. It is also strange to note that nobody from the nearby land was attracted due to the firing or was made witnesses in the instant matter. It is also pertinent to note that the said complainant has duly admitted in his deposition that he did not mention what may have motivated the accused to kill Sadoro, and to attack and fire at the others in the complainant party. It has also come on record that neither the brother nor the son of the deceased-Sadoro were associated as witnesses or were made the complainant in the instant matter. A similar erosion in the credibility of the witnesses' testimony takes place if the depositions of the other PWs are examined. As per Abdul Majeed (PW-3) he has categorically affirmed that prior to this incident there was no enmity or dispute between the parties. He has also admitted that except for Sadoro, no one else has received any injuries let alone a pellet injury due to the firing made by the accused persons. He has also admitted that accused had made the aerial firing just to harass them. Anwar Ali (PW-5), Tapedar , stated that he has visited the place of incident after nine years. The DW-1 Ashique Ali has stated that on the fateful day i.e., 28.11.2009, the accused persons were offering Eid with him when they all heard a sound of a gunshot and heard that someone had killed Sadoro. He has also admitted that he did not disclose the above fact to the police during the course of investigation. Interestingly, similar statements were given by the other defendant witnesses, namely, Habibullah (DW-2), Bashir Ahmed (DW-3) and Rehmatullah (DW-4). Habibullah (DW-2) stated that he was waiting for Namaz (Eid Prayer) when he heard gunshots, and after completing the Namaz, he went towards the place of fire and saw dead body of Sadoro. Bashir Ahmed, (DW-3) has stated that around 100 to 150 persons offered Eid prayer, whereas as per Rehmatullah (DW-4) more than 200 persons offered the Eid prayer. Interestingly, an eye-witness Ghulam Muhammad, was not examined, and no crime weapon was recovered from the accused persons.
9. If all the factors above are taken into consideration and read in juxtaposition, it becomes clear that the instant matter is tainted with doubts and contradictions, as is especially evident from the witnesses' testimonies. The prosecution has not been able to prove its case against the petitioner beyond a reasonable doubt. Where such doubts exist, the benefit of them, in our view, must be given to the petitioner.
In this regard, reliance may be placed upon the case of Ahmed Ali and another v. The State (2023 SCMR 781) , wherein this Court ruled as under:
"12. Even otherwise, it is well settled that for the purposes of extending the benefit of doubt to an accused, it is not necessary that there be multiple infirmities in the prosecution case or several circumstances creating doubt. A single or slightest doubt, if found reasonable, in the prosecution case would be sufficient to entitle the accused to its benefit, not as a matter of grace and concession but as a matter of right. Reliance in this regard may be placed on the cases reported as Tajamal Hussain v. The State (2022 SCMR 1567), Sajjad Hussain v. The State (2022 SCMR 1540), Abdul Ghafoor v. The State (2022 SCMR 1527 SC), Kashif Ali v. The State (2022 SCMR 1515), Muhammad Ashraf v. The State (2022 SCMR 1328), Khalid Mehmood v. The State (2022 SCMR 1148), Muhammad Semi Ullah v. The State (2022 SCMR 998), Bashir Muhammad Khan v. The State (2022 SCMR 986), The State v. Ahmed Omer Sheikh (2021 SCMR 873), Najaf Ali Shah v. The State (2021 SCMR 736), Muhammad Imran v. The State (2020 SCMR 857), Abdul Jabbar v. The State (2019 SCMR 129), Mst. Asia Bibi v. The State (PLD 2019 SC 64), Hashim Qasim v. The State (2017 SCMR 986), Muhammad Mansha v. The State (2018 SCMR 772), Muhammad Zaman v. The State (2014 SCMR 749 SC), Khalid Mehmood v. The State (2011 SCMR 664), Muhammad Akram v. The State (2009 SCMR 230), Faheem Ahmed Farooqui v. The State (2008 SCMR 1572), Ghulam Qadir v. The State (2008 SCMR 1221) and Tariq Pervaiz v. The State (1995 SCMR 1345)."
10. In view of the foregoing, the instant petition is converted into an appeal and it is allowed. The appellant is acquitted from the charge levelled against him. In case he is not required to be detained in any other case, then he shall be released forthwith.
11. These are the reasons of our short order dated 17.09.2025 which is reproduced hereunder:
"For the reasons to be recorded later, this petition is converted into an appeal and it is allowed. The petitioner Wazir son of Hakim Lolai is acquitted from the charge framed against him. The judgment of the Trial Court dated 09.04.2019 and the impugned judgment of the High Court dated 27.11.2020 are hereby set aside. In case the petitioner is not required to be incarcerated in any other case then he shall forthwith be released from the prison."
JK/W-7/SC Appeal allowed.