IN THE HIGH COURT OF SINDH, AT KARACHI
Criminal Appeal No. 130 of 2020
Appellants: Muhammad
Arman through Mr. Musharraf Azhar advocate
The State: Through
Mr. Khadim Hussain, Additional Prosecutor General Sindh
Date of hearing: 14.12.2022
Date of judgment: 14.12.2022
J U D G M E N T
IRSHAD ALI SHAH, J- It is alleged that the appellant committed
murder of Muhammad Feroz by way of asphyxia after subjecting him to unnatural
lust by administering him some intoxicant/poisonous substance, for that he was
booked and reported upon by the police. On conclusion of trial, he was convicted
u/s 302(b) PPC and sentenced to undergo rigorous imprisonment for 25 years; he
was further convicted under Section 377 PPC and sentenced to undergo rigorous
imprisonment for 10 years with fine of Rs.25,000/- and in default whereof to
undergo simple imprisonment for 03 months; both the sentences were directed to
run concurrently with benefit of Section 382(b) Cr.P.C by learned IV-Additional
Sessions Judge/MCTC-EXT, Karachi South vide judgment dated 31.01.2021, which is
impugned by the appellant before this court by way of 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 party and he has been
convicted and sentenced by learned trial Court virtually on the basis of no
evidence. By contending so, he sought for acquittal of the appellant by extending
him benefit of doubt. In support of his contentions, he relied upon case of Mst. Asia Bibi vs. The State and others (PLD
2019 S.C 64).
3. None has come forward to advance
arguments on behalf of the complainant. However, learned Addl.PG for the state
by supporting the impugned judgment has sought for dismissal of the instant
appeal by contending that the appellant has confessed his guilt before the
complainant party and the police.
4. Heard arguments and perused the record.
5. Evidence of complainant Muhammad Naeem,
P.Ws Shahriver Shah @ Nasir and Muhammad Hamza prima facie suggests that on
01.01.2017, the deceased was brought at his house by the appellant in a
rickshaw in unconscious position and he then was taken to Abbasi Shaheed
Hospital, Karachi, there he was declared dead; his dead body then was taken to
Civil Hospital, Karachi, for postmortem; the appellant was apprehended by them and
it was disclosed by him before them that, he has committed the death of the
deceased being his friend and he now will have to die; on such disclosure, the
appellant was brought by them at PS Nabi Bux, there he was taken into custody
by I.O/ASI Babar. As per P.W Dr. Abdul Ghaffar the death of the deceased was
result of asphyxia, no poison in viscera of the deceased was found, he however,
was found to have been sexually assaulted before his death. No DNA test was
arranged to identify the culprit, who sexually assaulted the deceased, such
omission on part of the police could not be ignored. The medical officer, who
initially examined the deceased at Abbasi Shaheed Hospital Karachi and declared
him dead, has not been examined by the prosecution. As per the complainant his
154 Cr.P.C statement was recorded on 02.01.2017. It was recorded by ASI Liaquat
Ali of PS Nabi Bux; he too is not examined by the prosecution. None actually has
witnessed the appellant committing the alleged incident; the involvement of the
appellant in commission of incident is based apparently for the reason that he
confessed his guilt before the complainant party. Surprisingly, no question has
been put to the appellant during course of his examination under Section 342
Cr.P.C, to have his reply on his alleged extra-judicial confession before the
complainant party, as such, same, if any, could not be used against him. It was
stated by P.W P.C Muhammad Atiq that during course of inquiry, it was disclosed
by the appellant before I.O/SIP Rao Muhammad Anwar that he has committed the
alleged incident. Evidence of I.O/SIP Rao Muhammad Anwar is silent with regard
to such disclosure. If for the sake of arguments, it is believed that such disclosure
was actually made by the appellant before the said I.O/SIP, even then same
being inadmissible in evidence in terms of Article 39 of Qanun-e-Shahadat
Order, 1984 could not be used against the appellant. No case property is
produced by the prosecution at trial. In these circumstances, it would safe to
conclude that the prosecution has not been able to prove the involvement of the
appellant in commission of the incident beyond shadow of doubt.
6. In case of Muhammad Asif vs the State (2008
SCMR 1001), it has been held by Hon’ble apex Court that;
“…..yet there is a delay of about two hours
which has not been explained. Similarly P.W.7 stated during cross-examination
that the police reached the spot at twelve noon and about half an hour was
consumed in conducting inquest proceedings and thereafter the dead body was
sent to the hospital. He further stated that he accompanied the dead body which
was taken in a wagon to the hospital and that it took only 15 or 20 minutes in
reaching the hospital. In that case the dead body would have been received at
the hospital by 1-00 p.m. On the contrary, the doctor, who is an independent
witness, stated that he immediately started post mortem examination after the
receipt of body and the time of post-mortem given by him was 4-50 p.m. that
means that the body remained at the spot for quite some time. The F.I.Rs. which
are not recorded at the police station suffer from the inherent presumption
that the same were recorded after due deliberations…...”.
7. In
case of Tahir
Javed vs. the State (2009 SCMR-166),
it was observed by Hon’ble Court that;
“---Extra-judicial confession having been made
by accused in the presence of a number of other persons appeared to be quite
improbable, because confession of such a heinous offence like murder was not
normally made in the public”.
8. In
case of Haji Nawaz vs. The State (2020 SCMR 687), it has been held
by Hon’ble Apex Court that;
“The law is settled by now that if a piece of
evidence or a circumstance is not put to an accused person at the time of
recording his statement under section 342 Cr.P.C then the same cannot be
considered against him for the purpose of recording his conviction.”
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