IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Appeal No. S-40 of 2022

Appellants: 1. Muhammad Saeed son of Haji Inayat Ali Khokhar R/O House No. EE-58 Street No. 1 Mohalla Phase DHA Lahore Cant, District Lahore.

2. Safdar Ali son of Muhammad Sharif Jatt, Resident of Street No. 8 Ghulam Bhatti Colony Dhadrai Road Chungi Amar Siddo Lahore Cant, District Lahore.

Through Mr. Qurban Ali Malano, advocate.

The complainant: Nisar Ahmed Bhanbhro, advocate.

The State: Mr. Zulfiquar Ali Jatoi, Additional Prosecutor General Sindh

Date of hearing: 28-02-2023.

Date of judgment: 02-03-2023

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that on 10.9.2020 at Motorway leading from Kashmore to Sukkur adjacent to village Kalar the appellants by way of rash and negligent driving of their Fortuner Car, hit to the Mehran car of complainant party whereby Ghulam Rabbani lost his life, the complainant and PW Raheel Rabbani sustained injuries caused damage to their car, for that they were booked and reported upon. On conclusion of trial, they were convicted and sentenced to undergo various terms of Imprisonment spreading over five years including Diyat/Daman/Fine by learned IVth Additional Sessions Judge (Hudood) Sukkur; vide judgment dated 30-05-2022, which is impugned by the appellants before this Court by preferring the instant appeal.

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; the FIR has been lodged with unexplained delay of about 03 days and evidence of the PWs being doubtful in its character has been believed by learned trial Court without assigning cogent reasons, therefore, the appellants are entitled to be acquitted of the charge by extending them benefit of doubt, which is not opposed by learned APG for the State or learned counsel for the complainant.

3. Heard arguments and perused the record.

4. The FIR of the incident has been lodged on 15-09-2020, it was with delay of about 03 days to the actual incident. No explanation to such delay is offered. As per PW Raheel Rabbani, his 161 Cr.P.C statement was recorded by the police on 28-09-2020; it was with the delay of about 16 days even to FIR. No explanation to such delay is offered. It was stated by PW/medical officer Dr. Ghulam Muhammad that he examined the injuries of PW Raheel Rabbani and issued such certificate. On asking, PW Raheel Rabbani was fair enough to say that no Medical Certificate with regard to the injuries, allegedly sustained by him, was issued. If it was so, then it prima-facie suggests that the medical certificate with regard to the injuries of PW Rabbani was managed. No official of Motorway Police is examined, who admittedly attracted to the incident promptly; such omission could not be overlooked. It was stated by I/O ASI Rabnawaz that it could not be concluded by him as to who was at the fault during the alleged incident. There is nothing in charge or statements of the appellants recorded u/s 342 Cr.P.C, which may suggest that who amongst them actually was driving the Forunter Car, when it meet with the accident. In these circumstances, it would be safe to conclude that the prosecution has not able to prove the involvement of the appellants in commission of incident beyond reasonable shadow of doubt and to such doubt, they are found entitled.

5. In case of Mehmood Ahmed & others vs. the State & another (1995 SCMR-127), it was observed by the Hon’ble Court that;

“Delay of two hours in lodging the FIR
in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate”.

6. In case of Abdul Khaliq vs. the State (1996 SCMR 1553), it was observed by Hon’ble Court that;

“----S.161---Late recording of statements of the prosecution witnesses under section 161 Cr.P.C. Reduces its value to nil unless delay is plausibly explained.”

7. 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".

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, they acquitted of the offence for which they were charged, tried, convicted and sentenced by learned trial Court; they are present in Court on bail, their bail bonds are cancelled and sureties are discharged.

9. The instant appeal is disposed of accordingly.

JUDGE

Nasim/P.A