IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 693 of 2019

Appellant: Tahir through M/s Shah Nawaz Teevno and Mujeeb Rehman advocates

The State: Through Mr. Hussain Bukhsh Additional Prosecutor General Sindh

Date of hearing: 01.09.2022

Date of judgment: 01.09.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant, co-accused Hafiz Talha and Sajawal Khan with rest of the culprit in prosecution of their common object abducted Azeem Khan, subjected him to rape, committed his murder by strangulating his throat and then thrown his dead body in drainage Nala in order to cause disappearance of evidence to save themselves from legal consequences, for that they were booked and reported upon. After due trial, co-accused Hafiz Talha and Sajawal Khan were acquitted while the appellant was convicted for an offence punishable under Section 302(b) PPC and sentenced to undergo life imprisonment and to pay compensation of Rs.500,000/- to the legal heirs of the said deceased by learned Additional Sessions Judge-IX, Karachi West, vide judgment dated 27.08.2019, which is impugned by the appellant before this Court by filing instant appeal from Jail.

2. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the complainant party; the FIR of the incident has been lodged with delay of 01 day; the incident was unseen and on the basis of same evidence co-accused Hafiz Talha and Sajawal Khan have been acquitted while the appellant has been convicted by learned trial Court without lawful justification. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt.

3. None has come forward to advance arguments on behalf of the complainant. However, learned Addl. P.G for the State by supporting the impugned judgment has sought for dismissal of instant jail appeal by contending that the case of appellant is distinguishable to that of acquitted co-accused Hafiz Talha and Sajawal Khan.

4. Heard argument and perused the record.

5. None has actually seen the appellant committing the alleged incident. The appellant apparently has been involved in commission of the incident on the basis of evidence of PW Gul Jan, as per him, he seen the deceased in company of the appellant and others lastly. By stating so he was fair enough to say that till ten days of incident he was neither asked by the complainant nor by the police to make his statement. It prima facie suggests that he was introduced in investigation subsequently, therefore, his evidence which even otherwise is weak in nature could hardly be relied upon. It was stated by I.O SIP Muhammad Aslam during course of interrogation the appellant and co-accused Ashfaq admitted their guilt before him. If it is believed to be so, then such statement being inadmissible in evidence in terms of Article 39 of the Qanun-e-Shahadat Order, 1984 could not be used against the appellant. It was further stated by IO SIP Muhammad Aslam that on pointation of the appellant he secured the dead body of the deceased from Nala, duly wrapped in sack. He in that respect is belied by the complainant who is also attesting witness to such recovery by stating that the dead body of the deceased was secured by the police at the pointation of co-accused Ashfaq. Such inconsistency had made the recovery of the dead body of the deceased allegedly at the pointation of the appellant to be doubtful. The two pieces of rope allegedly used in commission of incident were secured from graveyard, which was not found to be in exclusive possession of the appellant and co-accused Sher Khan and those apparently have not been subjected to chemical examination, therefore, such recovery could reasonably be judged with doubt. On examination of the dead body of the deceased, the anal swabs were taken, those sent for DNA examination but such examination could not be conducted as those were not found proper. Surprisingly, on the basis of same evidence co-accused Hafiz Talha and Sajawal Khan have been acquitted while the appellant has been convicted by learned trial Court. In these circumstances, it could be concluded safely that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt and to such benefit he too is found entitled.

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 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.”

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

11. Above of the reasons of short order dated 01.09.2022, whereby the instant jail appeal was allowed.

JUDGE