IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 469 of 2021

Criminal Appeal No. 478 of 2021

Appellants: Danish Amir and Muhammad Noman Qureshi through M/s Amir Mansoob Qureshi, Mamoon A.K. Shirwany, Iftikhar Ahmed Shah and Abdul Haleem Jamali advocates

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

Date of hearing: 21.11.2022

Date of Judgment: 21.11.2022

J U D G M E N T

IRSHAD ALI SHAH, J.- It is alleged that the appellants with rest of the culprits in furtherance of their common intention abducted Bilal Mehmood, committed his death and then thrown his dead body in katchra kundi after setting it on fire, in order to save themselves from the legal consequences, for that they were booked and reported upon. On conclusion of separate trial, (one being juvenile) co-accused Adeel-ur-Rehman was acquitted while the appellants were convicted under Section 302 PPC and sentenced to undergo life imprisonment with compensation of Rs.10,00,000/- each to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for 06 months with benefit of section 382(b) Cr.P.C by Additional Sessions Judge-I, Karachi East, vide separate judgments dated 02.08.2021, those, the appellants have impugned before this Court by preferring two separate appeals.

2. It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the police at the instance of the complainant party; the FIR of the incident has been lodged with delay of about 03 days that too is against unknown culprits; co-accused Adeel-ur-Rehman on the basis of same evidence has already been acquitted while the appellants have been convicted by learned trial Court, therefore, they are entitled to their acquittal by extending them benefit of doubt. In support of their contentions, they relied upon cases Hayatullah Vs. The State (2018 SCMR 2092) and Azeem Khan and another vs. Mujahid Khan and others (2016 SCMR 274).

3. None has come forward to advance arguments on behalf of the complainant. However, learned DPG for the state by supporting the impugned judgments has sought for dismissal of the instant appeals by contending that on arrest from the appellants have been secured the cell phone of the deceased; they have also confessed their guilt before the police and their case is distinguishable to that of acquitted accused.

4. Heard arguments and perused the record.

5. Admittedly, the FIR of the incident was lodged against unknown culprits and same at one moment was disposed of by the police under A-Class. It was stated by complainant Rizwan-ul-Haq that on 04.11.2015, his son Muhammad Bilal did not return to home, therefore, he on 07.11.2015 reported his missing to the police. On the re-investigation, he made further statement; it was made after 1½ years of the incident, therein he disclosed the names of suspect culprits. It has not been brought on record. On 07.06.2017, it was intimated to him by the I.O/SIP Azeemuddin Khan that the appellants have been apprehended by him and during course of interrogation, they have stated that they have thrown the dead body of the deceased in katchra kundi by committing his murder by way of strangulation after setting it on fire. On asking, the complainant was fair enough to admit that neither he nor anyone is eye witness to the incident and the deceased was insisting upon to marry with Mst. Rida, a lady older to him. Whatever is stated by the complainant is taking supporting from evidence of P.W Mst. Rozina. It was stated by P.W Kamran Fayyaz Sahi that after incident he was receiving the SMS from cell phone of the deceased, whereby he was being insisted to disclose the cell phone number of the complainant. It was stated by P.W/mashir PC Muhammad Khursheed that on 12.12.2015, the dead body of one unknown person was recovered from katchra kundi by ASI Abid Ali Soomro under memo and then it was kept in Edhi mortuary. ASI Abid Ali Soomro has not been examined by the prosecution. As per Dr. Shiraz Ali the dead body of the unknown person was with unidentifiable features, who was found to have been done to death by way of asphyxia. It was stated by I.O/SIP Azeemuddin Khan that on DNA examination, the complainant and his wife were found to be biological parents of the unknown dead body, therefore, it was concluded it was the dead body of Muhammad Bilal. It was further stated by him that on interrogation both the appellants confessed before him that they and co-accused Adeel-ur-Rehman have committed the murder of the deceased, kept his dead body on roof top of house of appellant Noman for 03 days and then thrown it, in katchra kundi after setting it on fire. If for the sake of arguments, it is believed that the appellants have actually made such confessions before the above said I.O/SIP, even then those could not be used as evidence against them being inadmissible in terms of Article 39 of the Qanun-e-Shahadat Order, 1984. It was further stated by the said I.O/SIP that on 09.06.2017, it was disclosed to him by appellant Noman that he had sold one cell phone of the deceased to Yar Muhammad while other cell phone of the deceased with its sim card is kept by him in his house, which was secured accordingly. Evidence of P.W Yar Muhammad is to the extent. The SIM card in the cell phone allegedly recovered from appellant Noman admittedly was issued in the name of the complainant. Nothing has been brought on record in shape of any document to prove the ownership of the complainant or of the deceased over the cell phone allegedly recovered from appellant Noman. Even otherwise, such recovery being easily available in market, having been effected at least with delay of 02 years to the incident could reasonably be judged with doubt. In these circumstances, it would be hard to maintain the conviction against the appellants on the basis of their extra-judicial confessions and recovery of cell phones.

6. The conclusion which could be drawn of above discussion would be that the prosecution has not been able to prove its case against the appellants beyond shadow of doubt and to such benefit they too are found entitled.

7. 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”.

8. 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".

9. In view of the facts and reasons discussed above, the conviction and sentence awarded to the appellants by way of impugned judgments are set aside, consequently, they are acquitted of the offence for which they were charged, tried, convicted and sentenced by learned trial Court; they shall be released forthwith, if not required to be detained in any other custody case.

10. Above are the reasons of short order dated 21.11.2022, whereby the instant appeals were allowed.

JUDGE