IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 373 of 2020

Appellants: Ramzan and Noor Ali through Mr. Mamoon A. K. Sherwany, Advocate

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

Date of hearing: 27.10.2022

Date of judgment: 27.10.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellants with rest of the culprits in prosecution of the common object committed death of Hyder by way of torture and then thrown his dead body in a water course in order to cause disappearance of evidence to save themselves from the legal consequences. On conclusion of trial, co-accused Ghulam Nabi alias Goro, Muhammad and Jabbar were acquitted while appellants were convicted under section 302(b) PPC and sentenced to undergo rigorous imprisonment of life and to pay compensation of rs.100,000/- each to the legal heirs of the deceased and in default whereof to under simple imprisonment for six months with benefit section 382-B, Cr.PC. by learned Additional Sessions Judge I/MCPC Thatta vide judgment dated 26.11.2019, which is impugned by the appellant by preferring the instant appeal from jail.

2. It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the police at the instance of complainant party on the basis of last seen evidence which is suspicious in nature and co-accused Ghulam Nabi alias Goro, Muhammad and Jabbar have already been acquitted by learned trial court on the basis of same evidence; therefore the appellants are also entitled for their acquittal by extending them benefit of doubt. In support of his contention he relied upon case of Muhammad Abid versus The State and another (PLD 2018 SC 813).

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 the instant appeal by contending that the prosecution has been able to prove its case against the appellants beyond shadow of doubt.

4. Heard arguments and perused the record.

5. It is inter alia stated by complainant Khalid, PWs Zulfiqar and Mukhtiar that on 07.05.2016 they with the deceased were confronted by the appellants and two unknown culprits when were going to their village on their motorcycles, who took the deceased with them under the pretext that he will have to repair their water pump; the deceased did not return till late hours; they made search for him but failed and on 09.05.2016 they came to know that the dead body of the deceased is lying in a water course. It was taken out and then was taken to Hospital for postmortem. On being asked who intimated them about the dead body of the deceased; PW Zulfiqar stated that by PW Gul Hassan. PW Gul Hassan has not been examined by the prosecution. His non-examination could not be overlooked. IO/SIP Shahnawaz who conducted initial investigation of the case was fair enough to admit that all the documents were reduced in writing by WHC Abdul Hussain Jokhio at his dictation. There is nothing in any document which may suggest that those were reduced in writing by WHC Abdul Hussain Jokhio at the dictation of IO/SIP Shahnawaz. The FIR of the incident has been lodged on 11.05.2016, it was with delay of about four days to the incident and with delay of about two days even after recovery of the dead body of the deceased; such delay having not been explained plausibly could not be ignored; it is reflecting consultation and deliberation. The evidence of the complainant and his witnesses prima facie suggests that they have not witnessed the death of the deceased with their eyes and the appellants have been involved in commission of incident on the basis of last seen evidence. On asking from the complainant and his witnesses about the appellants, it was stated by the complainant that the appellants were not known to them and they were intimated about them by the police and then later on they were identified by them. If it is believed to be so, then it prima facie suggests that the story of last seen evidence was managed by the complainant party later on, therefore, same being suspicious could hardly be believed. It was stated by IO/SIP Bashir Ahmed that he apprehended the appellants together with the motorcycle of the deceased under memo which he prepared at the spot. He in that respect is belied by PW Mashir Abdul Karim by stating that such mashirnama was prepared at police station Keenjhar Lake. Such inconsistency prima facie suggests that the investigation on part of IO/SIP Bashir was not fair. It was further stated by IO/SIP Bashir Ahmed that during course of interrogation the appellants admitted their guilt and led him to the place of incident. If for the sake of argument, it is believed that the appellants actually admitted their guilt before the said IO/SIP by making such statement even then same being inadmissible in evidence in terms of Article 39 of the Qanun-e-Shahadat Order 1984 could not be used against them. In these circumstances, it could be concluded safely that the prosecution has not been able to prove its case against the appellants beyond shadow of doubt and to such benefit they too are 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 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”.

8. 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".

9. In view of above, the conviction and sentence awarded to the appellant 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 and they shall be released forthwith, if are not required to be detained in any other custody case.

10. Above are the reasons of short order dated 27.10.2022, whereby the instant criminal jail appeal was allowed.

J U D G E