1. ' AZIZULLAH M. MEMON, J.---Appellant Abdullah was tried by the Court of learned VII-Additional Sessions Judge, Larkana in Sessions Case No,202/2000 pertaining to Crime No, 31/2000 of Police Station, Valeed, Larkana and vide judgment, dated 28-10-2002 (impugned through this jail appeal) stands convicted for committing offence under section 302(b), P.P.C.. And sentenced to undergo imprisonment for life and also to pay fine of Rs,50,000 or in default of the same to further suffer imprisonment for six months, with benefit under section 382-B, Cr.P.C. Amount of fine, if recovered, was directed to be paid to the legal heirs of deceased Munir Ahmed Arejo of this case; appellant has filed present jail appeal against the said judgment of conviction and sentence.
2. ' Mr. Muhammad Saleem Jessar, Advocate, was appointed to appear on Sate expenses for the pauper accused/appellant to pursue the proceedings of this jail appeal on his behalf.
3. ' Heard Mr. Muhammad Saleem Jessar for the appellant and Mr. Mushtaq Ahmed Ababsi for the State.
4. ' Appellant Abdullah as well as deceased Munir Ahmed were confined in the Central Jail, Larkana; on 7-5-2000 at 1740 hours Hidayatullah Wasan was working as O.G. Warder in the same jail; it is alleged that appellant and the said deceased entered into an altercation over the question of water to drink, in consequence whereof appellant allegedly gave a forcible push to the person of the deceased and then repeatedly hit his head against the iron bars of the gate of the barrack of the jail (wherein both were confined) at 1940 hours thereby causing following two injuries on his head:---
1. Lacerated wound 3 c.m. x 1/2 c.m. On posterior mid parietal region of skull; ' Swelling 5 c.m. x 5 c.m. On right parietal region of-skull.
5. ' The deceased fell down on the ground and started bleeding from the injury. The incident was said to had been witnessed by complainant Hidayatullah along with Faqeer Muhammad Kalhoro, Muhammad Ali and others, the officials of the jail.
6. ' Complainant Hidayatullah, with the help of other prisoners of the jail, took the deceased to the hospital of the jail for medical treatment, but the deceased succumbed to the injuries and died at 1445 hours; the complainant informed the Superintendent of the Jail, who issued a letter, which was taken by complainant Hidayatullah to Police Station Valeed, Larkana, where he lodged the F.I.R. At 1740 hours.
7. ' Police conducted investigation, in consequence whereof the appellant was sent up to the Court to face the trial.
8. ' Appellant pleaded 'not guilty' to the charge framed by the VII-Additional Sessions Judge, Larkana.
9. Prosecution, in support of its case, examined Medical Officer Dr. Badaruddin (Exh.5), complainant Hidayatullah (Exh.6) P.W. Muhammad Ali (Exh.7), P.W. Faqeer Muhammad (Exh.8), mashir Amanullah (Exh.9), Jail Superintendent Abu-Bakar (Exh.10), I.O. A.S.I. Niaz Hussain (Exh.11) and then prosecutor closed the side of evidence.
10. ' In his statement under section 342, Cr.P.C. Appellant denied the allegations and stated that he was falsely implicated for the incient of this case, only for the reason that the officials of the jail demanded money from him and he being a poor person could not pay the same to them and therefore, the said officials nursed a grudge against him and then got him falsely implicated in this case.
11. ' As stated above, the trial Court found the accused/appellant guilty for the murder of the said deceased and through the judgment impugned herein convicted and sentenced him. Hence the appellant has filed the present jail appeal.
12. ' Complainant stated in his F.I.R. That the incident of this case was witnessed by him, by two other jail officials, namely, Muhammad Ali and Faqeer Muhammad with some others; against such narration of the incident in the F.I.R., complainant Hidayatullah deposed before the trial Court that he heard cries from inside the barrack No,02, went running inside the barrack and saw appellant Abdullah strangulating prisoner Munir Ahmed and also hitting his forehead with the iron bars of the barrack, the other prisoners were Trying to save the deceased; in the meanwhile P. C . Amanullah Chandio , P. C . Faqeer Muhammad, P.C. Muhammad Ali Golo and Chief Warden S.I.P. Atta Muhammad reached there and rescued deceased Munir Ahmed from accused Abdullah who was then taken to the jail, hospital.
13. ' P.W. Muhammad Ali, examined at Exh.7 and P.W. Faqeer Muhammad examined at Exh.8 by the trial Court, did not depose in the clear terms that they ever Witnessed the incident of this case.
14. ' According to P.W. Muhammad Ali "I came to know that accused Abdullah and prisoner Munir, both confined in same ward, fought on water, and the prisoner/accused Abdullah after catching hold of deceased Munir hit his forehead with the iron bars of the barrack; according to depositon of Faqeer Muhammad "it was about 2-30 p.m., when the prisoner told me that in Barrack No,03 quarrel had taken place in between Abdullah Sheikh accused and deceased Munir Ahmed, who both were inside Barrack No,03, on which I went to the palce of incident and saw Munir Ahmed lying and blood was oozing from his head. P.C. Hidayatullah, who was already present at the place of incident, told that accused Abdullah while strangulating deceased Munir Ahmed hit his head with the iron door of barrack.
15. ' P.W. Hidayatullah neither deposed himself having witnessed accused/appellant strangulating deceased Munir Ahmed, nor any such fact of strangulation of the deceased at the hands of the appellant was made in the F.I.R. By the complainant.
16. ' Thus, the only eye-witnesses of the incident is complainant Hidayatullah, who, on the one hand, did not state in the FIR, that the deceased was strangulated by the accused/appellant, and on the other, his statement stands belied by the' other two witnesses to the effect in the meanwhile P.C.
17. Amanullah Chandio, P.C. Faqeer Muhammad, P.C. Muhammad Ali Golo and Chief Warden S.I.P. Atta Muhammad came at the spot. We got saved prisoner Munir Ahmed from accused Abdullah Complainant has given changing narration of the incident in his deposition, inasmuch as he stated in his examination-in-chief "when I came there, I came to know that accused Abdullah and prisoner Munir both confined in same ward fought on water and prisoner/accused Abdulalh, after catching hold of deceased Munir, hit his forehead with the iron bars of the barrack, whereas in his cross-examination he stated after my arrival Faqeer Muhammad Kalhoro also came there; further, "when I reached at the place of wardat, the police personnel already reached before my arrival and were separating the prisoners from each other".
18. ' According to P.W. Faqeer Muhammad, when he reached in the ncerned barrack of the jail "I saw deceased Munir Ahmed lying and blood was oozing from his head"; thus this part of his deposition conclusively proves that the incident had already taken place before his arrival at the place of incident.
19. ' The question as to whether deposition of complainant Hidayatullah alone would suffice to sustain the conviction recorded by the trial Court against the appellant, suffice it to say that in his deposition he stated that appellant strangulated the deceased simultaneously while hitting forehead of the deceased with the iron bars of the gate of the barrack, whereas he did not make any mention of strangulation of the deceased in the F.I.R., at the hands of the appellant.
20. ' It is a settled principle of law that conviction can safely be recorded against an accused on solitary, deposition of one witness provided the same inspires confidence and does not suffer from any infirmity or improbability; but in this case deposition of the complainant is found suffering from infirmities and could not have safely been relied upon for conviction, of the appellant.
21. ' It is a settled principle of law that even a single dent in the evidence produced by the prosecution would suffice to award benefit of doubt to the accused; appellant appears to be entitled to the benefit of doubt available in the evidence produced by the prosecution hence appeal is hereby allowed, judgment of conviction and sentence passed by the trial Court against the appellant is set aside and he is hereby acquitted, with direction to be released forthwith, if not required in any other custody case.