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