IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
(Criminal Appeal No.S-106 of 2019)
Appellant: Abdul Majeed s/o Nihal Khan Abro
Through Mr.Asif Ali Abdul Razzak Soomro, Advocate
The State: Through Mr. Ali Anwar Kandhro, Addl.P.G, Sindh
(Criminal Appeal No.S-108 of 2019)
Appellants: 1). Abdul Aziz s/o Hazoor Bux.
2). Waseem Ahmed s/o Abdul Aziz
3). Manzoor Ahmed s/o Abdullah.
4). Muhammad Aslam s/o Sikandar Ali.
Through Mr.Asif Ali Abdul Razzak Soomro, Advocate
The State: Through Mr. Ali Anwar Kandhro, Addl.P.G, Sindh
(Criminal Appeal No.S-128 of 2019)
Appellant: Abdul Razzak s/o Pehlwan Behrani Jatt
Through Mr.Asif Ali Abdul Razzak Soomro, Advocate
The State: Through Mr. Ali Anwar Kandhro, Addl.P.G, Sindh
Date of hearing: 30.03.2023
Date of decision: 30.03.2023
JUDGMENT
IRSHAD ALI SHAH, J;- Facts in brief necessary for disposal of instant criminal appeals are that an FIR was lodged on behalf of State by SIP Abdul Ahad Soomro with P.S City, Jacobabad, alleging therein that accused Abdul Aziz, Waseem, Nazir Ahmed, Madad Ali and Abdul Razzak, in furtherance of their common intention have committed murder of Mst.Aneela and then have caused disappearance of evidence by burying her dead body at some unknown place with intention to save themselves from legal consequences; they were charged accordingly, which they denied; the case proceeded and after examination of few witnesses, they were discharged by learned 1st Additional Sessions Judge, Jacobabad, by making a conclusion that the case against them is of no evidence vide order dated 19.10.2016. While passing such order, he directed Inspector General of Police, Sindh, to depute a Senior Police Officer not below the rank of Deputy Inspector General of Police to initiate departmental action against all delinquent officers and submit his report within 30 days. Pursuant to such order, a Joint Investigation Team (JIT) was constituted under supervision of Mr.Sarfraz Nawaz, the then S.S.P Jacobabad and on the basis of re-investigation, the appellants and others were challaned to face trial for the said offence; they did not plead guilty to the charge; the prosecution to prove it, examined in all ten witnesses and then closed its side. The appellants and others in their statements recorded under Section 342 Cr.PC denied the prosecution’s allegation by pleading innocence; they did not examine themselves on oath or anyone in their defence. On conclusion of trial, co-accused Nazir Ahmed, Abdul Ahad, Allahyar, Abdullah and Rasheed Ahmed were acquitted by extending them benefit of doubt while the appellants were convicted and sentenced to various terms of imprisonment spreading over life with fine with benefit of Section 382-B Cr.PC by learned 1st Additional Sessions Judge/MCTC, Jacobabad, vide judgment dated 08.11.2019, which they have impugned before this Court by preferring three separate criminal appeals.
2. It is contended by learned counsel for the appellants that the appellants have been convicted and sentenced by learned trial Court, virtually on the basis of no evidence, therefore, they are entitled to be acquitted by extending them benefit of doubt, which has already been extended to five co-accused, which is opposed by learned Addl.P.G for the State by supporting the impugned judgment.
3. Heard arguments and perused the record.
4. Admittedly, the FIR with regard to death of Mst.Aneela allegedly at the hands of her relatives, was lodged by SIP Abdul Ahad with P.S City Jacobabad on behalf of the State with unexplained delay of about one month. Initially, accused Abdul Aziz, Waseem, Nazir Ahmed, Madad Ali and Abdul Razzak Jatt were challaned in such FIR to face trial for the said incident; subsequently they were discharged by learned trial Court by ordering re-investigation of the case. On the basis of re-investigation, the appellants and others were challaned to face trial accordingly. As per I.O/Inspector Amanullah, on investigation, it transpired that Mst.Aneela was brought at P.S City Jacobabad by PWs/PCs Arz Muhammad and Muhammad Ameen when was being maltreated by accused Abdul Aziz, Waseem and Nazir with intention to commit her murder. She as per PW/WHC Ghulam Murtaza was produced before SIP Abdul Ahad Soomro and was then let to go by SHO Abdul Razzak Abro of P.S City Jacobabad with her relatives, on execution of bail bond by appellant Abdul Razzak Jatt. It was further stated by I.O/SIP Amanullah that the appellants who were arrested by him on inquiry, admitted before him that after committing death of Mst.Aneela they have thrown her dead body in Canal. If for the sake of arguments, it is believed that such admission was actually made by the appellants in custody before him, even then same in terms of Article 39 of Qanun-e-Shahadat Order, 1984 could not be used against them as evidence. No much reliance could be placed upon a photo stat copy of bail bond allegedly executed by appellant Abdul Razzak Jatt on stamp paper for safe custody of Mst.Aneela before appellant Abdul Majeed Abro, the then SHO, P.S City Jacobabad, for the reason that its correctness is not verified. The video clip of Mst.Aneela as per I.O/Inspector Amanullah was got downloaded from You-Tube through PW/PC Adeel Ahmed whereby she was expressing apprehension to her life at the hands of her relatives. He has not been examined; his examination was essential to prove that, it was he, who actually downloaded such video clip, the same even otherwise, has not been subjected to forensic examination; it was essential to ascertain its correctness. The evidence of PW Mukesh Kumar who allegedly interviewed Mst.Aneela at Press Club Jacobabad is not indicating as to what actually was said by her. PW Muhammad Ashraf who has been examined as reporter of such News T.V Jacobabad was fair enough to say that he has got no knowledge of the present case. PW/Mr. Sarfraz Nawaz, the then S.S.P Jacobabad who supervised the re-investigation and furnished such report implicating the appellants and others in commission of the incident, has not been examined. His non examination has prejudiced the appellants in their defence seriously. None has actually seen the appellants committing death of Mst.Aneela; her dead body has not yet been recovered; it is said that she has eloped away with her lover. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove its case against the appellants and they too are entitled to benefit of doubt which has already been extended to co-accused Nazir Ahmed, Abdul Ahad, Allahyar, Abdullah and Rasheed Ahmed by recording their acquittal by learned trial Court.
5. In case of Muhammad Jamil vs. Muhammad Akram and others (2009 SCMR 120), it has been held by the Hon’ble Apex Court that;
“When the direct evidence is disbelieved, then it would not be safe to base conviction on corroborative or confirmatory evidence.”
6. 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”.
7. 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".
8. In view of facts and reasons discussed above, the conviction and sentence awarded to the appellants 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; appellants Abdul Razzak Jatt and Abdul Majeed Abro are present in Court on bail; their bail bonds are cancelled and their sureties are discharged; appellants Abdul Aziz, Waseem Ahmed, Manzoor Ahmed and Muhammad Aslam are in custody; they to be released forthwith, if not required to be detained in any other custody case.
9. Above are the reasons of short order of dated 30.03.2023, whereby the criminal appeals were allowed.
JUDGE