JUDGMENT SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Appeal No.D-10 of 2021.
Crl.Conf:Reference No.D-12 of 2021.
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DATE ORDER WITH SIGNATURE OF HON’BLE JUDGE
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Before:
Mr. Justice Irshad Ali Shah,
Mr. Justice Shamsuddin Abbasi,
For hearing of main case.
Date of hearing : 24.11.2021
Date of decision : 15.12.2021
Mr. Athar Abbas Solangi, Advocate for the appellant.
Mr. Ali Anwar Kandhro, Addl. Prosecutor General for the State.
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IRSHAD ALI SHAH, J;- I have gone through the judgment authored by my learned brother Mr.Shamsuddin Abbasi (J), but with utmost respect and regard to his Lordship, I am not in agreement with the conclusion, which is drawn by him, therefore, I am writing the dissenting note separately.
2. Facts of the case and arguments advanced by learned counsel for the parties are elaborately narrated by his Lordship in his judgment; therefore, there appears no need to repeat the same. Admittedly, the FIR of the incident has been lodged with delay of about two days, yet it does not contain the name and description of the appellant. Complainant Naqash Ahmed being injured/star witness of the incident has not implicated the appellant and his father in commission of the incident by stating that they were not available at the time of incident. Mst.Marvi Paras who allegedly was inquired upon at hospital by the complainant party at the time of incident has not been examined by the prosecution; her examination was essential to prove factum of the incident. The 161 Cr.PC statements of PWs Arif Hussain and Junaid Muzafar have been recorded with delay of about two days even to FIR and no explanation to such delay has been offered by the prosecution; they have also made further statements one after other implicating the appellant and his father and then exonerating the father of the appellant in commission of the incident; such inconsistency on their part even at the time of investigation could not be overlooked; therefore, their evidence which is not appearing to be truthful could hardly be relied upon to maintain the conviction. There is no identification parade of the appellant through Magistrate. The weapon allegedly used by the appellant in commission of the incident has been recovered from him on 3rd day of his arrest. Such recovery even otherwise is not supported by first Mashir/PW Kashif Hussain during course of his examination by stating that his signatures were obtained by police on white written papers at P.S Waleed. The only evidence which connects the appellant with commission of the incident obviously is CCTV Camera recording of the place of incident; same as per I.O/ASI Ashraf Ali was secured by him in presence of first Mashir/PW Kashif Hussain, who on account of his failure to support the case has been declared hostile to the prosecution. The second Mashir/PW Amjad Ali has contradicted I.O/ASI Ashraf Ali by stating that he obtained CCTV Camera recording and photographs and then produced the same before the police. Besides this, nothing has been brought on record which may suggest that who actually provided CCTV Camera recording to either of them. Even otherwise, there is nothing in CCTV Camera recording or photographs, which may suggest that it was the appellant, who actually caused fire shot injuries to the deceased and the complainant. Co-accused Faqir Ali who happened to be father of the appellant, on the basis of same evidence has already been acquitted by learned trial Court. In these circumstances, it could be concluded safely that the prosecution has not been able to prove involvement of the appellant in commission of the incident beyond shadow of doubt.
3. In case of Imran Ashraf and others Vs.The State (2001 SCMR-424), it was observed by Hon’ble Court that;
“Section 154, Cr.P.C lays down procedure for registration of an information in cognizable cases and it also indeed gives mandatory direction for registration of the case as per the procedure. Therefore, police enjoys no jurisdiction to cause delay in registration of the case and under the law is bound to act accordingly enabling the machinery of law to come into play as soon as it is possible and if first information report is registered without any delay it can help the Investigating Agency in completing the process of investigation expeditiously. Any slackness or lukewarm attitude by the registering authority of FI.R. in fact intend to help the accused involved in the commission of the offence. Thus, it is advisable that the provisions of section 154 Cr.P.C. read with Rule 24.5 (c) of the Police Rules, 1934 be adhered to strictly. There should not be any negligence in recording the of F.I.R. and supplying copies to concerned quarters because departure from the mandatory provision of law creates a room to doubt the truthfulness of the allegation against the accused incorporated in F.I.R. As it has been observed hereinabove that in instant case the prosecution remained under serious criticism by the defence even on the question of promptly lodging of F.I.R”.
4. In case of Abdul Khaliq Vs. the State (1996 SCMR-1553), it was observed by Hon’ble Court that;
“It is a settled position of law that late recording of 161, Cr.P.C. statement of a prosecution witness reduces its value to nil unless there is plausible explanation for such delay.”
5. In case of Sardar Bibi and another Vs. Munir Ahmed and others (2017 SCMR-344), it was held by the Hon’ble Court that;
“The trial court acquitted Akram and Baati accused whereas Mulazam Hussain had been acquitted by the High Court meaning thereby the eye witnesses had not been believed to the extent of said co-accused who actively participated in the process of chopping and detaching the head of Zafar Iqbal from his body. This court had already settled the law on the point that if the eye-witnesses produced by the prosecution are disbelieved to the extent of some accused person attributed effective role, then the said eye-witnesses cannot be relied upon for the purpose of convicting another accused person attributed a similar role, without availability of independent corroboration to the extent of such other person. Reference in this respect may be made to the cases of Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11), Sarfraz alias Sappi v. The State (2000 SCMR 1758), Iftikhar Hussain and others v. The State (2004 SCMR 1185), Farman Ahmed v. Muhammad Inayat and others (2007 SCMR 1825), Irfan Ali v. The State (2015 SCMR 840) and Shahbaz v.The State(2016 SCMR 1763) and Akhtar Ali and others v. The State (2008 SCMR 6)”.
6. In case of Muhammad Mansha Vs. The State (2018 SCMR 772), it has been held by the Hon’ble Apex court 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 the 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".
7. In view of the facts and reasons discussed above, the conviction and sentence awarded to the appellant by way of impugned judgment are set aside, consequently, the appellant is acquitted of the offences for which he has been charged, tried and convicted by the learned trial court, he shall be released forthwith in present case, if is not required to be detained in any custody case.
8. The instant Criminal Appeal and Death Reference are disposed of accordingly.
JUDGE
JUDGE .