IN THE HIGH COURT
OF SINDH, AT KARACHI
Criminal Jail Appeal No. 118 of 2021
Criminal Jail Appeal No. 119 of 2021
Appellants: Muhammad
Faheem and Shahwaiz through M/s Raj Ali Wahid Kunwar, Abdul Qadir Soomro, Shah
Imroz Khan and Anjum advocates
The State: Through
Mr. Faheem Hussain Panhwar, Deputy Prosecutor General Sindh
Date of hearing: 21.12.2022
Date of judgment: 21.12.2022
J U D G M E N T
IRSHAD ALI SHAH, J.- It is alleged that the appellants in
furtherance of their common intention committed murder of Danish by causing him
injuries with some hard blunt substances, for that they were booked and
reported upon. On conclusion of trial, they were convicted under Section 302(b)
PPC and sentenced to undergo imprisonment for life and to pay compensation of
Rs.500,000/- 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 learned I-Additional Sessions
Judge, Karachi East, vide judgment dated 30.01.2021, which is impugned by the
appellants before this Court by preferring two separate appeals from jail.
2. It is contended by the 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 01 day and evidence of
the P.Ws being doubtful in its character has been believed by learned trial
Court without assigning cogent reasons, therefore, the appellants are entitled
to their acquittal by extending them benefit of doubt.
3. None has come forward to advance
arguments on behalf of the complainant. However, learned DPG for the state by
supporting the impugned judgment has sought for dismissal of instant jail appeals
by contending that the prosecution has been able to prove its case against them
beyond shadow of doubt.
4. Heard arguments and perused the record.
5. The incident is said to have taken place
on 09.03.2020; the FIR whereof is lodged on 10.03.2020 with delay of about 01
day, yet it does not contain the names and descriptions of the appellants. Complainant
Wahabuddin is not an eye witness to the incident, his evidence is only to the
extent that on information he went at the place of incident and identified the
dead body of the deceased therefore, his evidence is of little help to the case
of prosecution. It was stated by P.W Samiuddin that deceased was done to death
by the appellants by causing him injuries with concrete block and piece of
bottle on account of his refusal to return his loan to them. P.W Arshad Hussain
has supported P.W Samiuddin in his version. His evidence was not believed even
by learned trial Court. On asking both of them were fair enough to admit that
their 161 Cr.P.C statements were recorded by police on 11.03.2020 and
16.03.2020 respectively, it was with delay of about 01 and 06 days to the FIR; they
apparently were introduced in investigation by the police subsequently;
otherwise, their names are not appearing in the FIR even as witnesses; they as
such being managed witness could hardly be relied upon. PWs Mst. Parveen,
Kamran and Sadam Hussain were not examined by the prosecution. The inference
which could be drawn of their non-examination u/a 129(g) of Qanune-e-Shahadat
Order, 1984, would be that they were not going to support the case of prosecution.
It was stated by I.O/SIP Ali Khan that both the appellants disclosed to him
that they have committed the murder of the deceased. If for the sake of
arguments, it is believed that such disclosure was actually made by them before
the said I.O/SIP, even then same in terms of Article 39 of Qanun-e-Shahadat
Order, 1984 could not be used against them as evidence. As per forensic report,
the suspect/ culprit remained unknown. The appellants have pleaded their
innocence by examining them on oath and their witnesses by pleading enmity with
the police. In these circumstances, it would be safe to conclude that the
prosecution has not been able to prove its case against the appellants beyond
shadow of doubt and to such benefit they are found entitled.
6. In case of Abdul Khaliq vs. the State (1996 SCMR 1553), it has been held
by Hon’ble apex Court that;
“……It is a settled position
of law that late recording of 161, Cr.P.C. statement of a prosecution witness
reduces its value to nil unless there is plausible explanation for such delay.”
7. 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".
8. In view
of the facts and reasons discussed above, the conviction and sentence awarded
to the appellants by way of impugned judgment 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.
9. The instant jail appeals are disposed of
accordingly.
JUDGE