IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.
Criminal Jail
Appeal No.S-92 of 2018
Appellant : 1. Ghulam Rasool s/o Misri Khan Mari.
2. Muhammad Ilyas s/o Mureed Khan
Sahito.
Through. Mr. Shabbir Ali Bozdar advocate.
Criminal Appeal
No.S-93 of 2018
Appellant : Mureed Hussain s/o Barkat Ali Mari.
Through Miss Ambar Iqbal, advocate
The State : Through Mr. Imran Mobeen Khan,
Assistant Prosecutor General.
Complainant : Muhammad Bux Jokhio.
Through Mr. Abdul Qadir Khanzada,
Advocate.
Date of hearing : 12-04-2021.
Date of decision : 12-04-2021.
JUDGMENT
IRSHAD ALI SHAH, J; The appellants by preferring two separate appeals
have impugned judgment dated 30-08-2018 passed by learned 1st
Additional Sessions Judge, Naushahro Feroze whereby they have been convicted
and sentenced as under;
“ Accused
Ghulam Rasool Mari and Muhammad Ilyas Sahito are hereby convicted u/s 265-H(ii)
Cr.P.C and sentenced for the offence u/s 364 R/W Section 149 PPC to suffer R.I
for seven years and to pay fine of Rs.30,000/- each, in case of default of
payment of fine, they shall suffer R.I for three months more. Both accused
Ghulam Rasool and Muhammad Ilyas are also convicted u/s 265-H(ii) Cr.P.C and
sentenced for the offence punishable u/s 395 R/W Section 149 PPC to suffer R.I
for five years and to pay fine of Rs. 30,000/- each, in case of default of
payment of fine, they shall suffer R.I for six months more. Accused Ghulam
Rasool and Muhammad Ilyas are also convicted u/s 265-H(ii) Cr.P.C and sentenced
for the offence punishable u/s 201 R/W Section 149 PPC to suffer R.I for three
years and to pay fine of Rs.20,000/- each, in case of default of payment of
fine, they shall suffer R.I for one month more. There is also allegation of
committed murder and disappearance of dead body of Imran Jokhio against
them/Ghulam Rasool and Muhammad Ilyas, hence, aforesaid accused Ghulam Rasool
Mari and Muhammad Ilyas Sahito are further convicted and sentenced for offence
u/s 302 (b) R/W Section 149 PPC to suffer R.I for life as Tazir. In addition to
conviction, the accused Ghulam Rasool and Muhammad Ilyas are directed to pay
compensation of an amount of Rs. 200,000/- (two lacs) each to the legal heirs
of deceased Imran Jokhio. In default of payment of compensation, they shall
suffer further R.I for six months more. While accused Mureed Hussain Mari is
found guilty of offence punishable u/s 201 PPC, hence he too is convicted u/s
265-H(ii) Cr.P.C and sentenced for the offence u/s 201 PPC to suffer R.I for
three years and to pay fine of Rs. 20,000/-, in case of default to payment of
fine, he shall suffer R.I for one month more.
All
the sentences awarded to the appellants were ordered to run concurrently with
benefit of section 382(b) Cr.P.C.
2. The
facts in brief necessary for disposal of instant appeals are that on
20-05-2010, complainant Muhammad Bux, PW Abdul Shakoor and Imran Ali allegedly after
attending a Majlis-e-Aza at Naushahro
Feroze were going back to their village through Rickshaw, when reached at
regulator, they were confronted by five persons, they under the light of bulb
were identified by them to be appellants Ghulam Rasool and Muhammad Ilyas being
police personnel while remaining three persons could not be identified by them,
they robbed the complainant and PW Abdul Shakoor of their belongings and then
took with them Imran Ali under the pretext that he is wanted by them and then
let the complainant and PW Abdul Shakoor to go by their Rickshaw together with Rickshaw
driver. Imran Ali did not return, therefore, the complainant lodged the FIR
with the Police Station Phull on 04-06-2010. On investigation, it transpired that
after committing death of Imran Ali, the appellants and others in order to save
themselves from legal consequences, have caused disappearance of his dead body.
Successive investigation was conducted through Joint Investigation Teams
(JITs), consequently, the appellants together with co-accused Muhammad Aslam
and Abdul Samad were challaned by the police to face trial for the above said
offence.
3. At
trial, the appellants, co-accused Muhammad Aslam and Abdul Samad did not plead
guilty to the charge and prosecution to prove it, examined complainant Muhammad
Bux and his witnesses and then closed its side.
4. The
appellants, co-accused Muhammad Aslam and Abdul Samad in their statements
recorded u/s 342 Cr.P.C denied the prosecution’s allegation by pleading
innocence. They did not examine themselves on oath or anyone in their defence
excepting co-accused Muhammad Aslam, who examined himself on oath.
5. On
conclusion of the trial co-accused Muhammad Aslam and Abdul Samad were
acquitted while the appellants were convicted and sentenced as is detailed above
by learned trial Court by way of impugned judgment.
6. It
is contended by learned counsel for the appellants that the appellants being
innocent have been involved in this case falsely by the complainant party on
account of previous enmity; the FIR of the incident has been lodged with delay
of about 15 days; the 161 Cr.P.C statements of PW Abdul Shakoor have been recorded with further delay of 03 days even to
FIR; on successive investigation, no definite opinion has been arrived at by the
police with regard to the involvement of the appellants in the incident; the
dead body of the deceased has never been recovered and on the basis of same
evidence co-accused Muhammad Aslam and Abdul Samad have been acquitted while
the appellants have been convicted and sentenced by learned trial Court, therefore
the appellants too are liable to their acquittal by extending them benefit of
doubt.
7. Learned
A.P.G for the State did not support the conviction and sentence recorded
against the appellants for an offence punishable u/s 302(b) PPC by contending
that none has seen the appellants committing the death of Imran Ali or causing
disappearance of his dead body. However he supported the conviction and
sentence recorded against the appellants for offence of abduction of Imran Ali and
robbery from the complainant and PW Abdul Shakoor.
8. Learned
counsel for the complainant by supporting the impugned judgment has sought for
dismissal of the instant appeals by contending that the prosecution has been
able to prove its case against the appellants beyond shadow of doubt and the
case of the co-accused, who have been acquitted was distinguishable to that of
appellants.
9. I
have considered the above arguments and perused the record.
10. As
per complainant Muhammad Bux and PW Abdul Shakoor, they and Imran Ali on
20-05-2010 after attending Majlis-e-Aza
at Naushahro Feroze were going back to their village through Rickshaw, when
reached at police picket Phull, they were confronted by appellants Ghulam
Rasool, Muhammad Ilyas and others, they robbed them of their belongings and then
took away Imran Ali with them under the pretext that he is wanted by them and then
let them to go, Imran Ali did not return. The identity of the appellants Ghulam
Rasool and Muhammad Ilyas is based by the complainant and PW Abdul Shakoor under
the light of bulb, which is a weak piece of evidence. If Imran Ali was actually
taken away with them by appellants Ghulam Rasool and Muhammad Ilyas together
with rest of the unknown culprits, then it was obligatory upon the complainant and
PW Abdul Shakoor to have reported the incident with the police promptly. It was
not done by them for no obvious reason, therefore the lodgment of the FIR by
them on 04-06-2010 with police station
Phull with delay of about 15 days under the pretext that they were waiting for
their Nekmard to come is not appearing to be plausible. The
unexplained delay in lodgment of FIR obviously is reflecting consultation and
deliberation. The 161 Cr.P.C statement of PW Abdul Shakoor as per him was
recorded by the police on 07-06-2010. It was on 3rd day of the FIR
even. No plausible explanation to such delay is offered by the prosecution. In
that situation, no much reliance could be placed upon his evidence. The only
independent witness on point of alleged abduction of Imran Ali was the Rickshaw
driver. He has not been examined by the prosecution. His non-examination could
not be lost sight of. The inference which could be drawn of his non-examination
would be that he was not going to support the case of prosecution. Admittedly,
none has seen the appellants or anyone else committing the death of Imran Ali.
His dead body has not yet been recovered by the police. The one which was
recovered by the police within jurisdiction of Police Station Bhitt Shah, as
per SIO/SIP Ghulam Shabbir was not recognized by the complainant party to be of
Imran Ali. In that situation it would be hard to conclude that Imran Ali has actually
died or killed. If for the sake of arguments, it is believed that he actually
has died or killed, the what was actual cause of his death? Perhaps in these
circumstances, learned APG for the State has not supported the conviction
against the appellants for offence punishable under section 302 (b) PPC. PW
Naeem Mallah, who as per SIO/SIP Abdul Majeed lastly seen Imran Ali in company
of appellants Ghulam Rasool and Muhammad Ilyas has not been examined by the
prosecution. The inference, which could be drawn of his non-examination, too would
be that he was not going to support the case of prosecution. There is no recovery
of any sort from appellants, which may connect them with the allegation of
robbery. The successive investigation of the case was conducted at the instance
of Mst. Shaheen, said to be the mother of Imran Ali, she too has not been
examined by the prosecution for no obvious, reason, though she was examined by
the police during course of investigation. Mr. Irfan Ali Baloch the then SSP
Khairpur, being member of one of the JIT was fair enough to state that he
cannot say that the accused present in court are involved in charged offence.
Mr. Irfan Mukhtiar, the then SP Investigation Khairpur being member of another
JIT has inter-alia stated that;
“After
conducting investigation and recording statement of witnesses we arrived at
conclusion that legal action should be taken against PC.72 Samad of PP Phull
for not providing information to be chain of investigation. Departmental and
legal action should be taken against HC Qurban Ali Kalhoro and WHC of PP Phull.
No departmental and legal action should be taken against SIP Mureed Hussain
Mari incharge of PP Phull. SIP Aslam Leghari SHO PS Naushahro Feroze and SIP
Ghulam Shabbir Sahito SIO PP Phull. Ghulam Rasool and Muhammad Ilyas are
innocent”.
11. Surprisingly,
on the basis of same evidence, co-accused Muhammad Aslam and Abdul Samad have
been acquitted. In these circumstances, it could be concluded safely that the
involvement of the appellants in the alleged incident, the prosecution has not
been able to prove beyond shadow of doubt.
12. In
case of Mehmood Ahmed & others vs.
the State & another (1995 SCMR-127), it has been observed by the Hon’ble Apex Court that;
“Delay of two hours in
lodging the FIR
in the particular circumstances of the case had assumed great significance as
the same could be attributed to consultation, taking instructions and
calculatedly preparing the report keeping the names of the accused open for
roping in such persons whom ultimately the prosecution might wish to
implicate”.
13. In
case of Abdul Khaliq vs. the State (1996 SCMR
1553), it has been observed by
Hon’ble Apex Court that;
“----S.161---Late
recording of statements of the prosecution witnesses under section 161 Cr.P.C.
Reduces its value to nil unless delay is plausibly explained.”
14. In case of Sardar
Bibi and others vs. Munir Ahmed and others (2017 SCMR-344), it has
been held by the Hon’ble Apex Court that;
“When
the eye-witnesses produced by the prosecution were disbelieved to the extent of
one accused person attributed effective role, then the said eye-witnesses could
not 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 accused”.
15. 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".
16. Above
of the reasons of short order dated 12-04-2021 whereby the captioned appeals
were allowed in following terms.
“Consequently,
Appellants are acquitted of the offence for which they were tried, convicted
and sentenced by the learned trial Court. Appellant Mureed Hussain Mari is
present in Court on bail. His bail bond is cancelled and surety is discharged.
While Appellants Ghulam Rasool and Muhammad Ilyas are in custody; they shall be
released forthwith in the present case, if they are no more required in any
other custody case”.
Nasim/PA,