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Official Citation: Cr.J.A 6/2024 (SHC)
Court / Jurisdiction: Sindh High Court
Petitioner: Cr.J.A 6/2024 (S.B.) Sindh High Court, Circuit at Larkana - Adam Jafferi (Appellant)
Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as Cr.J.A 6/2024 (SHC). In this matter between Cr.J.A 6/2024 (S.B.) Sindh High Court, Circuit at Larkana - Adam Jafferi (Appellant) and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Sindh High Court CASE NO: Cr.J.A 6/2024 (S.B.) Sindh High Court, Circuit at Larkana CITATION: 2025 SHC LAR 2020 PARTIES: Adam Jafferi (Appellant) ORDER DATE: 25-JUL-25 BENCH: Hon'ble Mr. Justice Muhammad Saleem Jessar(Author) A.F.R: Yes ------------------------------------------------------------ IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Jail Appeal No. S-06 of 2024
Pauper Appellant : through Miss. Kiran Manzoor Mirani, Adam Jafferi son of Qamaruddin Advocate Jafferi
The State : through Mr. Aitbar Ali Bullo, Deputy Prosecutor General, Sindh.
Date of hearing : 25.07.2025
Date of Judgment : 25.07.2025
J U D G M E N T
Muhammad Saleem Jessar, J. - By means of instant criminal jail appeal, appellant Adam Jafferi son of Qamaruddin Jafferi has challenged the judgment dat ed 21.02.2024 passed by learned Additional Sessions Judge -I, Shikarpur vide Sessions Case No.278 of 2018 (re: State Vs. Sajjan and oth ers), arising out of FIR No.09/2018, under Sections 302, 337 -H(2), 114, 148 and 149 PPC, registered at Police Station , Sultankot, whereby the appellant has been convicted for offence punishable under section 302 PPC and sentenced to undergo rigorous impri sonment for life and to pay fine of Rs. 2,00,000/ - (Rupees Two lac) and in case of failure thereto, to suffer six months S.I more. He was also ordered to pay compensation of Rs. 5,00,000/ - (Rupees five Lac only) to legal heirs of the deceased in terms of Section 544 -A Cr.P.C. and in case of failure thereto, to suffer SI for one year more. However, benefit of Section 382 -B Cr.P.C. was extended to the accused. By the same judgment, accused Qamaruddin, Saeed Khan and Sajjan, both sons of Qamarudd in, were acquitted of the charge by extending benefit of doubt to them.
2. Brief facts giving rise to filing of instant Criminal Appeal, as per FIR lodged by complainant Saindad on 22.06.2018 at P.S. Sultankot , are; that a few days prior to this incident, the bushes of government forest had caught fire due to sparking of electric wires, whereupon accused Adam Jafferi and others claimed that such fire was set by father of the complainant namely, Hairuddin
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Jafferi, therefore, they will commit his murder. Complainant party had made such complaint to the elders of the accused and showed their willingness to settle the matter by way of talks. On 21.06.2018, the complainant along with his father Hairuddin son of Muha mmad Qasim, aged about 70 years, brother Nazir Ahmed and cousin Barkat Ali son of Dodo Jafferi were working at their land situated in Deh Zar Belo, when at about 08.00 a.m. they saw and identified accused Adam, Din Muhammad, Sajjan, duly armed with repeate rs, Saeed Khan and Akhtiar Ali, duly armed with guns, all sons of Qamaruddin and Qamaruddin son of Muhammad Qasim, all by caste Jafferi, and one unidentified person, duly armed with pistol, came there. While coming, accused Qamaruddin Jafferi instigated ot her accused persons to commit murder of Hairuddin, as he had set on fire the bushes, whereupon accused Adam Jafferi fired from his repeater upon his father Hairuddin which hit him, who while raising cries fell down. Complainant party raised cries and then all the accused went away after making aerial firing. The complainant saw that his father Hairuddin had one firearm injury on his right leg thigh, which was through and through and blood was oozing from the injury. They arranged conveyance and brought the injured at Civil Hospital Shikarpur, wherefrom he was referred to Sukkur but on the way he succumbed to the injury. Then, they brought his dead body at RHC Sultankot, where postmortem of the deceased was got conducted through police and then they took the dead body to their village where funeral and burial ceremony was held. On the next day, the complainant went to P.S. Sultankot and lodged FIR of this incident.
3. On completion of usual investigation, charge sheet was filed against accused Sajjan and others, showing therein accused Sajjan and Qamaruddin in custody, whereas accused Adam, Din Muhammad, Saeed Khan and Akhtiar as absconders.
4. NBWs were issued against the absconding accused but the same were returned unserved and then the accused were decl ared proclaimed offenders and proceedings under Sections 87 and 88 Cr. P.C. were also initiated against them.
5. A formal charge against accused Sajjan and Qamaruddin was framed by learned 3 rd Additional Sessions Judge, Shikarpur on 27.05.2019 vide Ex. 05 to which they pleaded not guilty and claimed to be tried vide their pleas
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recorded vide Ex. 6 and 7 respectively. Thereafter, case was transferred to the trial Court for disposal in accordance with the law. Accordingly, process against complainant and P.W s was issued. Meanwhile, complainant Saindad appeared and submitted an application for keeping the case in abeyance till arrest of principal accused Adam which was allowed and the case was ordered to be kept in abeyance vide Order dated 02.02.2021. Subsequ ently, accused Adam and Saeed Khan were arrested and joined in the trial. Thereafter, amended charge against accused Sajjan, Qamaruddin, Adam and Saeed Khan was framed on 08.11.2022 vide Ex. 14, to which they pleaded not guilty and claimed to be tried vide their pleas recorded vide Ex. 15 to 18 respectively.
6. In order to prove its case, prosecution examined PW -1 complainant Saindad at Ex. 21, who produced FIR as Ex.21/A. PW -2 Nazir Ahmed was examined as Ex. 22, who produced mashirnama of place of inciden t as Ex. 22/A. PW-3 Tapedar Muhammad Aslam Mirani was examined as Ex. 23, who produced sketch as Ex. 23/A. PW -4, PC Ubedullah Brohi was examined at Ex. 24, who produced receipt as Ex. 24/A. Learned ADPP for the State gave up P.W Barkat Ali vide Statement E x. 25. PW -5 SIP Arbelo Khan Sanjrani was examined at Ex. 26, who produced mashirnama of inspection of dead body as Ex. 26/A, Danistnama as Ex. 26/B, inquest report as Ex. 26/C and attested copies of roznamcha entries No. 6 and 11 on one page as Ex. 26/D. P W-6 SIP Koura Khan was examined at Ex. 27, who produced attested copies of entries No. 26 and 05 on one page as Ex. 27/A, attested copies of entries No. 9 and 18 on one page as Ex. 27/B, mashirnama of arrest as Ex. 27/C, letter issued to Mukhtiarkar Shikarpur as Ex. 27/D, R.C No. 15 as Ex. 27/E, R.C No. 17 as Ex. 27/F, chemical report as Ex. 27/G and FSL report as Ex. 27/H. PW -7 Dr. Munawar Ali Sanjrani was examined at Ex. 29, who produced postmortem report as Ex. 29/A. Thereafter, learned ADPP, appearing f or the State, closed the side of prosecution through his statement Ex. 30. Meanwhile, learned counsel for the accused submitted an application under Section 540 Cr. P.C. for recalling the P.Ws, on the ground that opportunity was not provided to the defense counsel of main accused to cross examine the witnesses. The said application was allowed by consent and then all the P.Ws were again recalled and cross-examined by learned defense counsel. Thereafter, evidence of PW - 08 P.C Javed Ali Shaikh was recorded at Ex.36, who produced mashirnama of
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recovery as Ex. 36/A. Thereafter, learned DDPP for the State closed prosecution side through his Statement Ex. 37.
7. Statements of accused under Section 342 Cr. P.C. were recorded at Ex. 38 to 41, wherein they denied the allegations of prosecution and stated that they have been falsely implicated in this case. They took the plea that there was a dispute between them and the family of Doda Khan, who was real uncle of complainant party, over the matrimonial a ffairs. According to them, on the same day, they had also lodged FIR No. 10/2018 under Section 364 -A PPC at P.S. Sultankot against their brothers and others in respect of the same dispute in which the I.O. and place of incident were the same ; however, in that case subsequently the accused were acquitted. According to them, they were law abiding citizens and cannot imagine to commit such kind of crime and that the deceased was their real cousin. They took the plea that at the instance of Doda Khan, complain ant had lodged false case against them and implicated the entire family. Accused Sajjan produced certified copy of Judgment dated 19.05.2022 as Ex. 38/A, challan as Ex. 38/B, FIR as Ex. 38/C and deposition as Ex. 38/D. However, they did not opt to examine themselves on oath as provided under Section 340 (2) Cr. P.C., nor produced any witness in their defense.
8. After formulating the points for determination in the case, recording evidence of the prosecution witnesses and hearing counsel for the parties, trial Court convicted and sentenced the accused / appellant, as stated above, hence this criminal appeal.
9. I have heard arguments advanced by learned counsel for the parties and perused the material made available before me on the record.
10. Learned counsel for the appellant submitted that there is delay of about one day and 5½ hours in lodging of the FIR. It was further submitted that all the material witnesses are closely related to complainant as well as deceased and there is no independent and disinterested witness to support the prosecution version, despite the fact that the alleged place of incident was situated in populated area. It was further submitted that the appellant is innocent and has falsely been implicated in instant case by th e complainant party. According to learned counsel, there are material contradictions and improvements in the evidence of complainant and other prosecution
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witnesses. She argued that there are also contradictions in the ocular testimony and medical evidence , inasmuch as; according to medical evidence, there was one entry wound and four exit wounds. It was submitted that it is beyond one‟s imagination that one entry wound would culminate in four exit wounds, therefore, it creates doubts in the prosecution sto ry. Learned counsel also pointed out that the accused on the day of alleged incident was not available at the spot, but he has been falsely implicated in this case by the complainant party. According to learned counsel, important witness Barkat Ali was not examined by the prosecution and was given up, therefore there is strong presumption that had he been examined, he would not have supported the prosecution case. It further submitted that it seems to be illogical that when the accused had the intention to commit murder of complainant party, then as to why they had killed only deceased Hairuddin and spared the remaining persons of the complainant party. According to her, no crime weapon has been recovered from the possession of the appellant and recovery of bloodstained earth and seven empty cartridges has been foisted upon the accused to corroborate the version of prosecution. It was further submitted that motive for committing the alleged offence has also not been proved. According to learned counsel, in view of above, the prosecution story set forth in the FIR appears to be highly doubtful, which put dents and create reasonable doubt in the prosecution case.
11. Conversely, learned DPG appearing for the State, while opposing the appeal, submitted that app ellant Adam Jafari made straight fire with his repeater at the deceased which was witnessed by three eye witnesses. So far as enmity is concerned, he submitted that it being a double edged weapon, may cut the roots of either side. According to him, the pro secution has succeeded in establishing the case against the appellant, as such the impugned order does not call for any interference. However, he could not controvert the fact that a cartridge injury caused through pallet could be so fatal and forceful to cross the human body with one entry wound and culminate in four exit wounds. As far as non -recovery of crime weapon is concerned, learned DPG pointed out that the appellant was arrested at a belated stage, hence no offensive weapon was recovered from his possession.
12. It seems that there are certain material discrepancies and lacunas in the prosecution case. Besides, there are also significant inconsistencies between
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the ocular testimony and the medical evidence which make the prosecution case highly doubtful.
13. As per the evidence of Medical Officer, Dr. Munawar Ali, while conducting postmortem examination of the deceased, he found a LTP wound on the lateral post of right lower thigh which was described as „Wound of Entry”. Besides this, he also found four LTP wounds on postero medial side of left thigh of the deceased which were described as “Wounds of Exit”. It is beyond one‟s imagination that a single entry wound, allegedly caused by a Repeater, would be so forceful and lethal that it would culmina te in four exit wounds. This create a legitimate doubt in the kind of crime weapon and so also about the number of shots fired from such weapon. It does not appeal to mind that one single shot shall cause such injuries in the manner as alleged in the prosecution story.
14. Apart from above, another glaring contradiction and inconsistency between the ocular testimony and the medical evidence is; that as per the medical evidence, the entry wound was allegedly caused at right thing, whereas all the four ex it wounds have been shown on the postero medial side of left thigh. It is not understandable that when the injury was caused by the accused on the right thigh of the deceased, then as to how there appeared four exit wounds on the left thigh. This, on the f ace of it, seems to be unbelievable, thus renders the prosecution story to be highly doubtful.
15. From this it is crystal clear that there is material contradiction and inconsistency between the ocular version and medical evidence, which creates doubt in the prosecution case. In this connection, reference may be made to the cases of Muhammad Ali Vs. The State reported in 2015 SCMR 137 and Nadeem alias Kala Vs. The State reported in 2018 SCMR 153, decided by Honourable Supreme Court. The ratio decidendi of the above -cited cases is; where contradiction between the ocular testimony and the medical evidence occurs, benefit thereof should be given to the accused.
16. As per prosecution case, there are allegedly three eye -witnesses of the incident viz. compla inant Saindad, P.W. Nazir Ahmed and P.W. Barkat Ali, who are real brother and cousin of the complainant respectively. During the trial proceedings, the said Barket Ali was given up and was not examined before the trial Court without assigning cogent and p lausible reason and
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justification although he being an alleged eye witness of the incident, his evidence was very much material and essential.
17. This is also injurious to the prosecution case as it is settled principle of law that despite availability of essential witnesses, non -examination of such witnesses in the case gives an inference that in case such witnesses had been examined, they would no t have supported the prosecution case, as envisaged under Article 129(g) of Qanoon-e-Shahadat Order, 1984.
18. In this connection, reference may be made to a decision of Honourable Supreme Court laid down in the case of Abdul Ghani Vs. The State reported in 2022 S C M R 2121 , wherein a Full Bench of Honourable Supreme Court held as under:
“Thereafter, according to Noor Ullah Khan, S.I. (PW -4) on 08.06.2011 he sent the sample parcels to the office of Chemical Examiner but according to the report of Chemical Examiner the sample parcels were delivered there by one Head Constable No. 25 on 10.06.2011 but the said Head Constable w as not produced by the prosecution during the trial. The learned state counsel could not explain as to why the said Head Constable was not produced to confirm the safe transmission of the sample parcels to the office of Chemical Examiner so an adverse pres umption under Article 129(g) of the Qanun -e-Shahadat Order, 1984 can be drawn against that person that he is not supporting the prosecution case. Non - production of the said Head Constable No. 25 indicates that safe transmission has also not been establishe d by the prosecution. It has already been held by this Court in the cases of Amjad Ali v. The State (2012 SCMR 577), Ikramullah and others v. The State (2015 SCMR 1002), Taimoor Khan and another v. The State and another (2016 SCMR 621), The State through R egional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039) and Khair -ul-Bashar v. The State (2019 SCMR 930) that in a case containing the above mentioned defect on the part of the prosecution, it cannot be held with any degree of certainty that the pr osecution had succeeded in establishing its case against an accused person beyond the shadow of doubt.”
19. Prior to above decision, in the case of Bashir Ahmed alias Manu vs. The State reported in 1996 SCMR 308 it was held by Honorable Supreme Court that despite presence of natural witnesses on the spot they were not produced in support of the occurrence an adverse inference under Article 129(g) of Qanun-e-Shahadat Order, 1984, could easily be drawn that had they been examined, they would not have support ed the prosecution version. In another case reported as Mohammad Shafi vs. Tahirur Rehman (1972 SCMR 144) it
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was held that large number of persons had gathered at the place of occurrence but prosecution failing to produce single disinterested Witness in su pport of its case, therefore no implicit reliance could be placed on the evidence of interested eye-witnesses.
20. There are also certain contradictions in the evidence of prosecution witnesses. Complainant Sain Dad in his cross examination stated that it was morning time when incident of fire in the forest took place, whereas another alleged eye -witness namely, Nazeer Ahmed in his cross examination stated that it was evening time when the incident of fire took place.
21. Apart from above, PW SIP Arbelo Khan was examined before the trial Court on 17.12.2022. He deposed that on 21.06.2018 he was called by the complainant who disclosed that his father was murdered by his enemies and requested him to come at Civil Hospital Sultan Kot. Accordingly, he reached there and prepared memo of inspection of dead body in presence of mashirs. After recording his evidence upto this stage, there is a Note of the trial court which reads as under:
“This is murder case and the witness present before this court is not ready to depose the real facts to which he is acquainted since the time when he went to Civil Hospital and captured all the events by preparing different documents. Learned ADPP as well as this court insisting him to depose all the facts but he is not ready for the reason best known to him. Lastly, he was directed to depose all the facts but he has failed. At this stage, this court has no option except to take him into custody and remand to District Prison Shikarpur for the period of seven days or till he shall become ready to depose all the facts before this court.”
22. Thereafter, on 04.01.2023 he was recalled and re -affirmed and evidence was completed. In his cross -examination, he adm itted that complainant did not disclose the name of any accused. He also admitted that during preparation of inquest no one disclosed him about the names of accused persons.
23. I am of the opinion that the evidence of a witness should be free from all sorts of fear and favour and without any kind of pressure having been exerted upon him. In case, any prosecution witness is not supporting the prosecution case, then the prosecutio n has the option to get him declared “hostile” through the trial Court and then the Court may allow the Law Officer appearing for the State to cross -examine the said witness. However, in
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view of the action taken in instant case by the trial Court in taking the said witness in custody and then remanding him to the prison and thereafter, recalling and re -examining him, renders the evidence of such witness as un - voluntary, as such the same loses its evidentiary value.
24. It is also noteworthy that trial Cou rt while acquitting accused, Qamaruddin, Sajjan and Saeed Khan, both sons of Qamaruddin, has convicted the present appellant Adam Jafferi on the basis of same set of evidence This is contrary to the rule of consistency as the acquitted accused were also as signed role in the commission of alleged offence. In this context, it may be pointed out that the complainant in his cross examination categorically admitted, “It is fact that all the accused had fired upon us.” Besides, the complainant as well as another alleged eye-witness Nazir Ahmed in their respective examination - in-chief deposed that after the incident, the accused went away by making aerial firing upon complainant party. Apart from this, they also deposed that accused Qamaruddin instigated other accu sed persons not to spare the complainant party whereupon accused Adam made fire from his repeater which hit him at his right thigh.
25. From above, it is clear that even the abovesaid acquitted accused persons, have also been assigned specific role in the commission of offences. In this view of the matter, when the appellant has been convicted whereas other accused persons, who were also attributed specific role in the commission of alleged offence, as stated above, have been acquitted on the basis of same set of evidence, then certainly rule of consistency comes into play and, therefore, the present appellants should have also been meted out with the same treatment like acquitted accused persons.
26. On the point of 'rule of consistency', it would be advantageous to refer to a judgment of Honourable Supreme Court penned down in the case of Muhammad Asif v. The State reported in 2017 SCMR 486 wherein it was held as under:
“It is a trite of law and justice that once prosecution evidence is disbelieved with respect to a co -accused then, they cannot be relied upon with regard to the other co -accused unless they are corroborated by corroboratory evidence coming from independent source and shall be unimpeachable in nature but that is not available in the presen t case.”
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27. In another case reported as Umar Farooque v. State (2006 SCMR 1605) Honourable Supreme Court held as under:
“On exactly the same evidence and in view of the joint charge, it is not comprehendible, as to how, Talat Mehmood could be acquitted and on the same assertions of the witnesses, Umer Farooque could be convicted.”
28. Yet, in another case reported as Muhammad Akram v. The State (2012 SCMR 440) the Apex Court, while holding that same set of evidence, which was disbelieved qua the involvement of co -accused, could not be relied upon to convict the accused on a capital charge, had acquitted the accused. In view of this legal position, appellant should also have been extended same benefit as given to the aforesaid three acquitted accused.
29. Apart from above, there are also certain other discrepancies/lacunas in the prosecution case which put dents therein. For instance; no private person was associated as mashir while arresting the accused, as both the mashirs are police officials, thus there seems to be violating of provision of section 103 Cr.PC; that no crime weapon has been recovered from the possession of the appellant and that there is delay in sending the incriminating articles to the chemical examiner as well as FSL.
30. It is well a settled principle of law that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt. It has also been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In the instant case prosecution does not seem to have proved the allegations against the accused/appellant by producing unimpea chable evidence, thus doubts have been created in the prosecution version. In the case reported as Wazir Mohammad Vs. The State (1992 SCMR 1134) it was held by Honourable Supreme Court as under:
“In the criminal trial whereas it is the duty…
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