IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 24 of 2021

Appellant: Abdul Jabbar through Barrister Ali Tahir and Mr. Muhammad Hashim advocates

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

Date of hearing: 06.12.2022

Date of judgment: 06.12.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant with rest of the culprits in furtherance of their common intention committed murder of Shahnawaz by causing him blows with cement block and then caused disappearance of evidence by hiding his dead body in hill sand lying on the roof top of workshop, in order to save themselves from legal consequences, for that the present case was registered. On conclusion of trial, co-accused Haji Muhammad was acquitted while appellant was convicted u/s 302(b) PPC and sentenced to undergo imprisonment for life and to pay compensation of Rs.50,000/- to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for 01 year, with benefit of section 382(b) Cr.P.C by learned VII-Additional Sessions Judge/MCTC-II, Karachi Central, vide judgment dated 24.12.2020, which is impugned by the appellant before this Court by preferring the instant appeal.

2. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police at the instance of the complainant and on the basis of same evidence co-accused Haji Muhammad has been acquitted, while the appellant has been convicted by learned trial Court. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt. In support of his contentions, he relied upon cases of (i) Sarfraz Khan vs. The State and 2 others (1996 SCMR 188), Ziaul Rehman vs. The State (2001 SCMR 1405), Amal Sherin and another vs. The State through A.G, NWFP (PLD 2004 S.C 371) and Muhammad Zubair vs. The State (2010 SCMR 182).

3. None has come forward to advance arguments on behalf of the complainant. However, learned D.P.G for the state by supporting the impugned judgment has sought for dismissal of instant appeal by contending that beside extra-judicial confession appellant has also led to recovery of dead body of the deceased and his case is distinguishable to that of acquitted accused.

4. Heard arguments and perused the record.

5. It is stated by complainant Haq Nawaz that his brother deceased Shah Nawaz gone missing, therefore, he on 22.06.2019, made an application with SHO PS Gabol Town, suspecting therein appellant and others for causing disappearance of his brother Shah Nawaz; subsequently, his 154 Cr.P.C statement to such effect was recorded and then it was incorporated in formal FIR on 25.06.2019 by I.O/SIP Anwar Ali. On investigation, the appellant was apprehended by I.O/SIP Liaquat Ali and he during course of interrogation, confessed his guilt by stating that he was suspecting the deceased to be having illicit relations with his wife Mst. Kiran, therefore, he in collusion with Haji Muhammad and others by committing his murder have buried his dead body in hill-sand lying on roof top of workshop. Haji Muhammad, being owner of workshop, was also apprehended, he and appellant as per the complainant then led to recovery of dead body of the deceased; it was then sent to Abbasi Shaheed Hospital for postmortem, which was conducted by Medical Officer Dr. Muhammad Khalid. The evidence of P.W Muhammad Ahmed is on lying with that of the complainant. If their evidence is believed to be true, even then it prima facie suggests that they are not witnesses to actual death of the deceased to be relied upon. P.W Muhammad Jahanghir was introduced in the investigation; it was stated by him that he has seen the appellant, co-accused Haji Muhammad and one unknown culprit hiding the dead body of the deceased in hill-sand at roof top of their workshop. By Stating so, he was fair to admit that his 161 Cr.P.C statement was recorded on 09.07.2015, it was with delay of about 14 days to lodgment of FIR of the incident. Even otherwise, he was not able to recognize the appellants by face at trial, as such, his evidence being doubtful in nature could hardly lend support to the case of prosecution. On consecutive investigation conducted by I.Os/SIPs Mujahid Baig and Muhammad Jameel Akhtar, accused Haji Muhammad was declared to be innocent, he was joined in trial by the Magistrate having jurisdiction. The liability of the recovery of the dead body of the deceased, if any, being owner of the workshop was to have been shouldered by Haji Muhammad and not by the appellant only for the reason that he was working there. Even otherwise, nothing has been brought on record by the prosecution which may suggest that that the appellant was employee of Haji Muhammad at his workshop. No finger print marks have been obtained from the cement block allegedly secured by the said I.O/SIP from the place of incident. If for the sake of arguments, it is believed that appellant has actually confessed his guilty before the said I.Os/SIPs even then, such confession being extra-judicial in its nature being inadmissible in evidence in terms of Article 39 of the Qanun-e-Shahadat Order, 1984 could not be used against him. Obviously the case of the appellant is identical to the case of acquitted accused Haji Muhammad. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove its case against the appellant too beyond shadow of doubt and to such benefit he is found entitled.

6. In case of Imran Ashraf and others vs. the State (2001 SCMR 424), it was observed by Hon’ble 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”.

7. In case of Abdul Khaliq vs. the State (1996 SCMR 1553), it was observed by Hon’ble 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.”

8. 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”.

9. In the 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".

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

11. The instant appeal is disposed of accordingly.

JUDGE