THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 769 of 2019

  

                                                        Before;

                                                                    Mr. Justice Irshad Ali Shah

 

Appellant:                            Syed Muhammad Adeel through Mr. Iftikhar Ahmed Shah advocate

 

The State:                              Through Mr. Faheem Hussain Panhwar Deputy General Sindh

 

Date of hearing:                  18.08.2022

 

Date of judgment:              18.08.2022

 

 

J U D G M E N T

 

IRSHAD ALI SHAH, J- The facts in brief necessary disposal of instant appeal are that complainant Mst. Mussarat Adnan by making an application intimated SHO PS Joharabad that her husband Muhammad Adnan is missing since few days. Subsequent to it, she lodged FIR to such effect with the said P.S. In the meanwhile, dead body of one unknown person was found lying within jurisdiction of PS Bin Qasim, for that a separate FIR was also lodged by ASI Habibullah Shahani, with PS Bin Qasim on behalf of state. It was disposed of under “c” class. On investigation of the present case, the appellant was apprehended and he during course of interrogation disclosed before the police that he, co-accused Nasir Hussain and Shah Jee, in furtherance of their common intention by abducting Muhammad Adnan, have committed his murder by causing him fire shot injuries and then have set his dead body on fire, in order to cause disappearance of evidence to save themselves from legal consequences. On the basis of such disclosure, the appellant and said co-accused after usual investigation were booked and reported upon in the said offence by the police.

2.         After due trial, co-accused Nasir Hussain and Shah Jee were acquitted while appellant was convicted under Section 302(b) PPC and sentenced to undergo R.I for life and to pay Rs.200,000/- as compensation to the legal heirs of the said deceased and in default whereof to undergo simple imprisonment for one year with benefit of section 382-B Cr.P.C by learned VII-Additional Sessions Judge, /MCTC-02 Karachi Central, vide judgment dated 14th November 2019, which is impugned by the appellant before this Court by preferring the instant appeal. 

3.         It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the complainant party; the FIR of the incident is lodged with delay of about 06 days, yet it is not containing the name of appellant; none actually has seen the appellant committing the death of the deceased; on the basis of same evidence co-accused Nasir Hussain and Shah Jee have been acquitted by learned trial Court, while appellant has been convicted and the recovery from the appellant if any, has been foisted upon him by the police. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt. In support of his contentions, he relied upon the cases of Hayatullah vs. The State (2018 SCMR 2092).

4.         The complainant was served with the notice, she engaged the counsel and then preferred to remain absent together with her counsel. However, learned DPG for the State has sought for dismissal of the instant appeal by supporting the impugned judgment by contending that the case of the appellant is distinguishable to that of co-accused Nasir Hussain and Shah Jee and he has been convicted by the learned trial Court on the basis of proper appraisal of evidence.  

5.         Heard arguments and perused the record.

6.         Admittedly, the FIR of the incident has been lodged with delay of about six days, the narration made therein by the complainant was only to the extent that her husband/ the deceased is missing since few days. Subsequently, it was stated by the complainant that on the date of incident, her husband left his house, intimating her that he is going with his employee, the appellant in connection with a piece of work. This piece of evidence is appearing to be an improvement on the part of the complainant. If for the sake of argument, it is believed to be true, even then it does not suggest that the complainant has actually seen the deceased with her own eyes to be in company of the appellant, at the time when he (deceased) left his house, it was simple intimation. To prove that the appellant was with the deceased lastly, the photocopies of CCTV recording of Jinnah Terminal Karachi have been produced by prosecution through P.W PC Farhan Ahmed, he during course of his examination was fair enough to admit that full face of the appellant is not visible therein but he was found identifiable through his eyes. The identity of the appellant through his eyes is doubtful in nature. Last seen evidence even otherwise being weak piece of evidence in nature could hardly be relied upon. It was stated by I.O/ Inspector Muhammad Ayub that the appellant was arrested by him on 28.11.2018 and he during course of interrogation, admitted before him that he has committed the murder of the deceased at the instance of co-accused Shah Jee by causing him fire shot injuries with the pistol owned by co-accused Nasir Hussain and then set his dead body on fire to cause disappearance of the evidence. On this, the complainant has come with a different version. As per her, she intimated the police on 07.11.2018 that the appellant had gone with the deceased, the police then called the appellant and kept him there. It prima facie suggests that the formal arrest of the appellant in this case was declared by the police after 21 days of his unlawful custody. If for the sake of arguments, it is believed that the appellant has made a statement before the police or before the complainant party admitting his guilt, even then such statement is not enough to base conviction for the reason that it is inadmissible in evidence in terms of Article 39 of Qanun-e-Shahadat Order, 1984. On arrest from the appellant, it is said was secured the crime weapon and wrist watch of the deceased. Such recovery obviously was made by ASI Alauddin who admittedly was not the investigating officer of the case that too on 6th day of his formal arrest. The recovery made by a person who was having nothing to do with the investigation of the case is to be judged with doubt. The pistol allegedly recovered from the appellant even otherwise has been subjected to forensic analyze on 3rd day of its recovery. No explanation to such delay is offered by the prosecution. In these circumstances, the appellant could hardly be connected with the recovery of crime weapon, wrist watch of the deceased or even with the car of the deceased from Jinnah Terminal Karachi a public place. Further the I.O Inspector Muhammad Ayub during course of his examination was fair enough to admit that (all) the proceedings/memos of this case were written by ASI Abdullah on his dictation. There is nothing in any of the memo which may indicate that it was written by ASI Abdullah at the dictation of I.O Inspector Muhammad Ayub. It goes to suggest that investigation of the present case actually was conducted by ASI Abdullah and the activity on the part of I.O Inspector Muhammad Ayub was only to the extent of table investigation. In these circumstances, it could be concluded safely that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt and he too is found entitled to the benefit of such doubt, which has already been extended by learned trial Court in favour of co-accused Nasir Hussain and Shah Jee by recording their acquittal.

7.         In case of Imran Ashraf and others vs. the State (2001 SCMR 424), it has been held by Hon’ble Apex 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”.

 

8.         In the case of The State through P.G. Sindh and others Vs. Ahmed Omar Sheikh and others (2021 SCMR 873), it has been held by Hon’ble Supreme Court that;

“The last seen evidence was available with the complainant well before lodging the FIR but was not mentioned therein which created serious doubt regarding such piece of evidence. So it was quite clear that the story of last seen was introduced after the lodging of FIR”

 

9.         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”.

 

10.       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".

 

11.       In view of above, the conviction and sentence awarded to the appellant by way of impugned judgment are set-aside, consequently, he is acquitted of the offence for which he was charged, tried and convicted by learned trial Court and he shall be released forthwith, if not required to be detained in any other custody case.

12.       Above of the reasons of short order dated 18.08.2022, whereby the instant appeal was allowed.

                                                                                                                  

JUDGE