IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 796 of 2019

Appellant: Waheed Ahmed through Mr. Arshad Khan advocate

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

Date of hearing: 12.09.2022

Date of judgment: 12.09.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is the case of prosecution that the appellant abducted baby Erum alias Rani, aged about 08 years, subjected her to rape, committed her death and then thrown her dead body in bushes adjacent to Kaneez Fatima Housing Society, in order to cause disappearance of evidence to save himself from legal consequences, for that he was booked and reported upon. After due trial, he for an offence punishable under Section 364-A PPC and 302(b) PPC was convicted and sentenced to undergo rigorous imprisonment for life, on each count and to pay compensation of Rs.500,000/- to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for 06 months; all the sentences were ordered to run concurrently with benefit of section 382-B Cr.P.C by learned 1^st Additional Sessions Judge, Karachi East vide judgment dated 20.05.2019, which is impugned by the appellant before this Court by preferring the 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 police at the instance of the complainant party; the FIR of the incident has been lodged with the delay of more than 01 month; the incident was seen and the evidence which the prosecution has produced, being inconsistent and doubtful has been believed by learned trial Court without lawful justification, therefore, the appellant is entitled to his acquittal by extending him benefit of doubt. In support of his contentions, he relied upon case of Imran alias Dully and another vs. The State and others (2015 SCMR 155).

3. Learned DPG for the state by supporting the impugned has sought for dismissal of instant jail appeal by contending that the appellant is fully implicated in commission of incident by PW Fida Hussain and he has also admitted his guilt before the police.

4. Heard arguments and perused the record.

5. As per complainant Muhammad Saleem, his daughter baby Erum alias Rani while playing in the street, gone missing and he lodged such report with the police. It was lodged with delay of about 08 days as is admitted by the complainant and the I.O SIP Iftikhar Ahmed, such delay could not be overlooked. On investigation, it was intimated to the police by PW Fida Hussain that he has seen the deceased in the company of the appellant lastly. On asking he was fair enough to admit that the appellant was not known to him and his 161 Cr.P.C statement was recorded by the police with delay of 01 month and 08 days to the incident. If the appellant was not known to PW Fida Hussain, then the police was under lawful obligation to have subjected the appellant to identification parade by involving Magistrate, such exercise was not undertaken by the police for no obvious reason, therefore, such omission could not be lost sight of. The delay in record 161 Cr.P.C statement of P.W Fida Hussain too has not been explained plausibly which prima facie suggests that he was introduced in investigation as witness only to implicate the appellant in commission of incident on account of his refusal to make confessional statement before the Magistrate. On arrest, as per I.Os/ HC Ghulam Hussain and SIP Iftikhar Ahmed the appellant during course of interrogation admitted his guilt before them by stating that he has committed death of the deceased by strangulating her throat. If for the sake of arguments, it is believed that such statement was actually made by the appellant before the said police officers, even then same being inadmissible in evidence under Article 39 of Qanun-e-Shahadat Order, 1984 could not be used against the appellant. On arrest from the appellant as IO/SIP Iftikhar Ahmed was secured cell phone with a SIM card, which he allegedly used for making contact with the complainant party. Nothing has been brought on record by the prosecution, which may prove the ownership of the appellant over the alleged cell phone and SIM card. In that situation, the appellant could hardly be connected with such recovery. As per medical officer Dr. Zakiya Syed, the dead body of the deceased was identifiable. In absence of DNA report, the identity of the dead body of the deceased by the complainant to be of his deceased daughter could also be judged with doubt. No punishment is awarded to the appellant for having committed offence punishable under Section 376 and 201 PPC. By that act the appellant has been acquitted for such allegations even by learned trial Court impliedly.

6. The discussion involved a conclusion that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt and to such benefit he is found entitled.

7. 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…...”

8. 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.”

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 is not required to be detained in any other custody case.

11. The instant jail appeal is disposed of accordingly.

JUDGE