IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Criminal Appeal No.S-19 of 2019

Criminal Jail Appeal No.S-23 of 2019

Appellants: 1. Mst. Ameeran wd/of Amanullah, Mirbahar.

2. Pathan s/o Mehboob Ali Mirbahar.

3. Inayat Ali s/o Mehboob Ali Mirbahar.

4. Azizullah son of Mehboob Ali Mirbaha.

Through M/s Rukhsar Ahmed Junjeo, Amanullah G.Malik and Ali Ahmed Khan, advocates.

The State: Through Mr. Aftab Ahmed Shar, Additional

Prosecutor General.

Complainant: Saadullah son of Nabi Bux Mirbahar.

Through Mr. Muhammad Hamzo Buriro, Advocate.

Date of hearing: 22-04-2021.

Date of decision: 22-04-2021.

JUDGMENT

IRSHAD ALI SHAH, J; The appellants by preferring two separate appeals have impugned the judgment dated 23-02-2019 passed by learned Additional Sessions Judge, Pano Aqil whereby they inter-alia have been convicted and sentenced as under;

“Consequently, accused Pathan son of Mehboob Mirbahar, Mst. Ameeran w/o of Amanullah Mirbahar, Inayat Ali son of Mehboob Ali Mirbahar and Azizullah son of Mehboob Ali Mirbahar are convicted u/s 265H(ii) Cr.P.C and sentenced to R.I for life imprisonment for offence under section 302 (b) PPC. They are also convicted for offence under section 452 PPC and sentenced to undergo R.I for five years and to pay fine of Rs. 5000/- each, in case of default of payment of fine, they shall suffer S.I for three months.

2. No Order is passed by learned trial Court which may suggest that the conviction and sentences awarded to the appellants may run concurrently or consecutively, which is surprising. However, the appellants have been awarded the benefit of section 382 (b) Cr.P.C.

3. The facts in brief necessary for disposal of instant appeals are that Amanullah was allegedly done to death by his wife Mst. Ameeran (appellant) with the help of his paramour Pathan and others (appellants) by causing him hatchets injuries, for that they were booked and reported upon by the police.

4. At trial, the appellants did not plead guilty to the charge and prosecution to prove it, examined in all nine witnesses including the complainant and then closed its side.

5. The appellants in their statements recorded u/s 342 Cr.P.C denied the prosecution’s allegation by pleading innocence by stating that the deceased was killed by his son Saifullah when he attempted to commit sodomy with him. In order to prove such fact, they produced copies of news clipping of daily newspaper ‘Koshish’ and ‘Kawish’ dated 30-08-2014. They did not examine themselves on oath, however they examined Mir Muhammad, Abdul Latif, Mst. Rehana and Mst. Rukhsana in their defence and then closed their respective sides.

6. On conclusion of the trial, learned trial Court found the appellants guilty, consequently convicted and sentenced them as is detailed above by way of impugned judgment.

7. 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 in order to satisfy its dispute with them over matrimonial affairs; the FIR of the incident has been lodged with delay of one day; the 161 Cr.P.C statements of the PWs have been recorded with further delay of 07 days even to the FIR; the names of appellants Inayat Ali and Azizullah have not been disclosed in FIR or charge sheet; the hatchets have been foisted upon appellants Mst. Ameeran and Pathan; the evidence of the prosecution’s witnesses being doubtful in its character has been believed by learned trial Court without lawful justification, therefore the appellants are liable to their acquittal by extending them benefit of doubt. In support of their contentions, they have relied upon case of Saleh-ur-Rehman Vs. The State (2005 MLD 637), Zaffar and another Vs. The State and another (2019 YLR Note 25) and Tariq Pervez Vs. The State (1995 SCMR 1345).

8. Learned A.P.G for the State and learned counsel for the complainant by supporting the impugned judgment have sought for dismissal of instant appeals by contending that it was the brutal murder, which the appellants have committed in order to satisfy their illicit relations.

9. I have considered the above arguments and perused the record.

10. It is inter-alia stated by complainant Saadullah, PWs Muhammad Sulleman and Arbab Ali that they on 29-08-2014 through their motorcycle went to meet with Amanullah at his house, on hearing of his cries, they rushed inside of his house and there they found the appellants, who were causing hatchets injuries to him and he by sustaining such injuries died, the appellants then made their escape good, they intimated HC Hafiz Saeed Mirani about the incident. If it was so, then he was to have been examined by the prosecution to prove that he actually was intimated by the complainant party about the incident. His non-examination could be viewed with doubt. Be that as it may, as per ASI Niaz Ahmed, he went at the place of incident at the advice of WHC PS Cant and there from he shifted the dead body of the deceased to Taluka Hospital Pano Aqil for post mortem. He on asking was fair enough to admit that when he reached at the place of incident, the complainant and his witnesses were not found available there. If it is so, then where, from they came to witness the incident. No explanation to it is offered by the prosecution. In that situation the delay in lodgment of FIR, even by one day on the part of the complainant could not be lost sight of. It has made the presence of the complainant and witnesses at the place of incident and at the time of incident to be doubtful. The complainant and his witnesses even otherwise being resident of different village were hardly having a justifiable reason to be available at the house of the deceased only to witness his death. PW Sulleman was fair enough to admit that his 161 Cr.P.C statement was recorded by the police on 07-09-2014. It was with the delay of about 07 days even to the FIR. No explanation to such delay is offered by the prosecution. He went to the extent of saying that the identification of the appellants was conducted before the Magistrate. It was contrary to the record, which is silent about the conduct of identification parade of any of the appellant. In that situation no much reliance could be placed upon his evidence being interested person. PW Arbab Ali came with different version, as per him police did not record his statement. If it is so, then he apparently was introduced into investigation by the complainant subsequently. The witness introduced subsequently could hardly be relied upon. The names and descriptions of appellants Inayat Ali and Azizullah have not been disclosed in the FIR, those have been disclosed subsequently by PWs Sulleman and Arbab Ali in their 164 Cr.P.C statements, which were recorded on 22-09-2014 by learned Magistrate, significantly in their absence, that too after submission of the charge sheet of the present case by the police before the learned Magistrate having jurisdiction, it was submitted on 19-09-2014. Surprisingly, they (appellants Inayat Ali and Azizullah) have been joined in trial by learned trial Court vide its order dated 18-05-2015 on an application u/s 193 Cr.P.C made by the complainant, without putting them on notice or providing chance of hearing, which is against the mandate contained by Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, which prescribes right of fair trial to every citizen, such act on part of learned trial Court is unfortunate. In that situation their (appellants Inayat Ali and Azizullah) involvement in this case apparently is appearing to be doubtful. Appellant Mst. Ameeran is widow of the deceased, as has come on record she and the deceased remained in wedlock for about 35 years and they had been blessed with eight kids and were also having grand kids. The death of the deceased is alleged to have taken place in his house, in that situation his close family members ought to have been made witness to the incident. Non association of any of the family members of the deceased in investigation on the part of the complainant and police could not be lost sight of, it smells of foul play. The hatchets have allegedly been secured from the appellants Mst. Ameeran and Pathan on 5^th and 6^th day of their arrest. The recovery of the hatchets with such a delay could be judged with doubt. No question even otherwise has been put to any of them in their statements recorded u/s 342 Cr.P.C to have their explanation on such recovery, therefore they could not be connected with such recovery. 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.

11. 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”.

12. 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.”

13. 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".

14. In view of the facts and reasons discussed above, the conviction and sentence recorded against the appellants by way of impugned judgment are set-aside, they are acquitted of the offence, for which they have been charged, tried and convicted by learned trial Court, they are in custody and they shall be released forthwith in the present case.

15. The above are the reasons for short order dated 22-04-2021, whereby the instant Appeals were allowed.

JUDGE

Nasim/PA,