Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Jail Appeal No. S – 91 of 2010

Date of hearing : 06.12.2019.

Mr. Mehfooz Ahmed Awan assisted by Mr. Farhan Ali Shaikh Advocates for the appellants.

Mr. Alam Sher Bozdar Advocate for complainant.

Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General.

J U D G M E N T

NAIMATULLAH PHULPOTO, J.– Appellants Muneer Ahmed and Ghulam Murtaza alias Papoo were tried by learned 2^nd Additional Sessions Judge Ghotki in Sessions case No. 38/2001, for offences under sections 364, 34 PPC, registered vide crime No.37/1998 at Police Station Yaroo Lund. On the conclusion of the trial, vide Judgment dated 14.05.2010 the appellants Muneer Ahmed and Ghulam Murtaza alias Papoo were convicted under section 365-A PPC to the imprisonment of 10 years each and to pay fine of Rs.50,000/- each. In case of default in payment of fine they were ordered to suffer S.I for six months more. Both the accused were extended benefit of Section 382-B Cr.P.C. The case of proclaimed offenders namely : Ayaz alias Jeeja, Irshad, Ghulam Mustafa, Shabbir Ahmed, Sudheer and Mst. Shazia was kept on dormant file.

2. Brief facts of the prosecution case as disclosed by complainant Abdul Wahid in his evidence before trial Court at Ex.8 are that on 03.05.1998, he was present at his house situated in village Hassan Ali Khan Lund, P.Ws Shahnawaz Lund, Ali Muhammad Soomro and his brothers Sabzal Khan, Abdul Ghafoor and Mehmood were also present. Accused Muneer Ahmed, Ghulam Mustafa, Irshad Ahmed came in the house of the complainant, it was 11.00 a.m and stayed in his house for 3/4 hours as they are related to the complainant. They asked the brother of the complainant namely: Abdul Ghafoor, Sabzal to take some amount for purchase of the land on cheap rates in Taluka Sadiq Abad. Thereafter the brothers of complainant namely : Abdul Ghafoor, Sabzal and Mehmood took Rs. 15,30,000/- and went with the accused persons. Brothers of the complainant neither returned back nor contacted till 03 days. Thereafter, complainant sent his another brother Abdul Razaque to the house of accused Muneer, Basheer and Ghulam Mustafa. P.W Abdul Razak returned back after 2/3 days and informed to the complainant that according to accused persons his brothers had returned back home. Thereafter, complainant started search for his brothers and after 2/3 months went to Police station Gudu for registration of FIR, then to Police Station Yaroo Lund, but case was not registered. Finding no other way, complainant filed constitutional petition No.S-914/1998 before this Court and on the directions, FIR was registered which he has produced before the trial Court at Exh.8-A. It appears that on the direction of this Court, FIR vide crime No. 37/1998 was registered at Police Station Yaroo Lund for offences under section 364, 34 PPC. Complainant in his evidence has stated that accused had kidnapped his brother for huge amount and Mst. Shazia was also involved in such conspiracy.

3. After usual investigation challan was submitted against the accused for offences under sections 364, 34 PPC.

4. Trial Court framed the charge against the accused Muneer Ahmed, Ghulam Murtaza alias Papoo and Ghulam Mustafa for offence under sections 364, 365-A PPC.

5. At the trial, prosecution examined six (06) PWs and prosecution side was closed.

6. Statements of accused Muneer Ahmed and Ghulam Murtaza alias Papoo were recorded under Section 342, Cr. P.C at Ex.21 and 22 in which accused claimed false implication in this case and denied the prosecution’s allegation. Accused Muneer Ahmed in his statement under section 342 Cr.P.C has produced copy of FIR No. 59/1998 lodged by Mst. Shazia at Police Station Gudu under section 364 PPC and copy of C.P No.S-794/1998 filed by Mst. Shazia against SHO Police station Yaroo Lund and others. Both accused Muneer Ahmed and Ghulam Murtaza lias Papoo neither led any evidence nor examined themselves on oath in disproof of prosecution allegations.

7. Learned trial Court after hearing counsel for the parties and assessment of the evidence vide judgment dated 14.05.2010 convicted and sentenced the appellants as stated above, hence this appeal is filed.

8. Mr. Mehfooz Ahmed Awan advocate for the appellants mainly contended that before registration of FIR, complainant had filed C.P No.S-914/1998 before this Court in which he failed to mention date and time of present incident, that there was four months delay in lodging of the FIR for which no plausible explanation has been furnished, that Constitution Petition filed by the petitioner was materially different from his FIR in respect of the incident, that Mst. Shazia the absconding accused is wife of one of the abductee namely Sabzal. It is further submitted that Mst.Shazia had lodged FIR against accused Ghulam Murtaza alias Papoo and Aijaz Ahmed bearing crime No. 59/1998 at Police station Gudu District Jacob Abad about the present incident but it was quashed as per instructions. Mr. Awan argued that three accused namely : Muneer Ahmed, Ghulam Murtaza and Ghulam Mustafa faced trial but during trial accused Ghulam Mustafa has expired and proceedings against him were abetted, that P.Ws Ali Muhammad, Shah Nawaz did not identify the appellants before trial Court, that evidence of PW Allah Dino was not recorded by the trial Court, that PW Allah Warrayo was eye witness of the incident but he has given entirely different version of incident from complainant, that all three abdcutees could not be recovered during investigation, that only the evidence against accused was that abductees were lastly seen in the company of accused Muneer Ahmed. There was delay in recording 161 Cr.P.C statements of P.Ws without explanation. It is argued that some P.Ws stated that abdcutees went with appellants from the house of complainant and some stated from the otaq of Ali Muhammad. Lastly, it is contended that prosecution has failed to prove its case against the appellants.

9. Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General assisted by counsel for complainant conceded to the contentions raised by learned advocate for the appellants and recorded no objection for acquittal of the Appellants.

10. The facts of this case as well as evidence produced before trial court find an elaborate mention in the judgment passed by trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repeatation.

11. I have carefully heard learned counsel for the parties and perused the evidence minutely.

12. By now, it is a consistent view that when any case rests entirely on circumstantial evidence then, each piece of evidence collected must provide all links making out one straight chain where on one end its nose fit in the neck of the accused and the other end touches the dead body. Any link missing from the chain would disconnect and break the whole chain to connect the one with the other and in that event conviction cannot be safely recorded and that too on a capital charge. In view of changed social norms and standard of ethics of the society, to which the witnesses belong and also the questionable credibility of investigating agency and its incompetency to professionally investigate such blind crimes, by now, the Courts have to exercise more and more cautions before accepting and resting its opinion of being guilty on a circumstantial evidence collected apparently in a dishonest and dubious manner, as held in the case of Fazal Elahi v. The Crown (PLD 1953 FC 214)

13. In the present case, facts narrated by the complainant and other prosecution witnesses clearly show that appreciation of evidence required care and caution. F.I.R was delayed for more than 02 months without plausible explanation. Mst. Shazia who has been nominated as accused by the complainant had earlier lodged FIR vide crime No.59/1998 at Police Station Gudu regarding same incident. She had also filed const. Petition No. S-794/1998 before this Court. Not only this, complainant had also filed const. Petition No.S-914 of 1998 before this Court. The version given by the complainant in his const. Petition before this Court so also the number of the accused is different from the version of the FIR. Moreover, motive for commission of the offence as described by the complainant doesn’t appeal to the prudent mind. Investigation has also been conducted inefficiently. Moreover, prosecution has utterly failed to establish that the appellants kidnapped Abdul Ghafoor, Sabzal and Mehmood in order that such persons might be murdered for extorting valuables / ransom. It is very unfortunate that trial Judge has also not appreciated evidence according to settled principles of law. Learned trial Judge has passed erroneous judgment. State counsel has also not supported the case of prosecution.

14. 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 the benefit of such doubt, not as a matter of grace and concession, but as matter of right. It is based on the maxim, “it is better then ten guilty persons be acquitted rather than one innocent person be convicted”. Reliance in this behalf can be made upon the cases of Tarique Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230), Muhammad Zaman v. The State (2014 SCMR 749) & Muhammad Mansha v. The State (2018 SCMR 772).

15. Accordingly, while extending benefit of doubt to the appellants, this appeal is allowed and appellants Muneer Ahmed and Ghulam Murtaza alias Papoo are acquitted from all the charges leveled against them by setting aside conviction and sentence recorded against them. They are present on bail, their bail bonds stand cancelled and sureties are discharged.

J U D G E

Irfan/PA.