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