IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

CriminalAppeal No.S-54of 2022

Appellant         :             Ali Sher son of Gul Muhammad Soomro,

Through Mr. Safdar Ali Ghouri, Advocate.

Complainant      :           Muhammad BachalLakhair

                                      Through Mr. Habibullah G. Ghouri, Advocate.

State                    :         Through Mr. Aitbar Ali Bullo, Deputy

Prosecutor General, Sindh.

Date of hearing     :         08.05.2023

Date of decision    :         08.05.2023

Date of Reasons    :         19.05.2023

JUDGMENT

ZULFIQAR ALI SANGI,J.:-This Criminal Appeal isdirected against Judgment dated 21.10.2022, passed by learned Additional Sessions Judge-IV, Daduin Sessions Case No.198/2021(Re.The StateV/s.Ali Sher Soomro),emanating from F.I.R. bearing Crime No.02/2021, offence under section 364-A P.P.C registered at Police Station,Bhand Mari whereby present appellant was convicted for offence punishable under section 364-A P.P.C and sentenced to suffer R.I for seven years.

2.       The facts in brief are that complainant lodged F.I.R. alleging therein that on 14.09.2020, he alongwith his brother Umed Ali and his brother-in-law Imtiaz Ali were on the way to home after harvesting the land, when they reached at Wahar Mori near village Bhand Mari at 1230 hours, they saw Ali Sher Soomro was going on motorcycle with son of complainant Imran Ali, aged about 12/13 years; complainant asked Ali Sher Soomro to stop the motorcycle but he didn’t and they came to their house. On noticing that his son has not returned yet, complainant approached Ali Sher Soomro, but Ali Sher did not give him satisfactory reply. Complainant once again went to the village of Ali Sher Soomro, who met with him alongwith his brother Muhammad Roshan, who kept him on false hopes. On 25.09.2020, complainant approached S.H.O.P.S. Bhand Mari, where accused gave undertaking in writing in presence of S.H.O and witnesses that he will trace out the boy and will hand over to his father till 15.10.2020, in case of default he will be responsible for that, but he did not satisfy the complainant party. Hence the F.I.R.

3.       The formal charge was framed against the present appellant/accused by learned trial Court, to which he pleaded not guilty and claimed trial.   

4.       To establish the accusation against the appellant/accused, the prosecution examined in all seven witnesses, they all produced certain items and the documents in support of their evidence. Thereafter, learned State Counsel closed the side of prosecution.

5.       Appellant/accused in his statement recorded U/S.342 Cr.PC, denied the allegations leveled against him by pleading his innocence stating therein that he has been implicated falsely by the police. He however did not examine himself on oath in disproof of the charge nor led any evidence in his defence.

6.       The learned trial Court on appraisal of the material brought on record and hearing counsel for the parties convicted and sentenced the present appellant/accused vide judgment, as detailed above.

7.       Per learned defence counsel, the instant case is false and fabricated against present appellant/accused; that the evidence of all the prosecution witnesses being contradictory have no credibility and thus cannot be relied upon without independent corroboration. Summing up his contentions, the learned defence counsel submitted that the present accused has been arraigned in this case, which is discernible from the averments of the F.I.R. , as such the case of prosecution is doubtful and has no foundation against the appellant/accused, therefore, he deserves to be acquitted in the circumstances of case.

8.       In rebuttal to above, learned Deputy Prosecutor General for the State contended that all the witnesses have fully supported the case of prosecution and no major contradiction is noticed in their evidence, therefore, learned trial Court finding the appellant/accused guilty of the offence has rightly convicted and sentenced him by way of impugned judgment which calls for no interference by this Court, therefore, the appeal filed by the appellant being devoid of merits is liable to be dismissed. However, learned counsel for the complainant and the complainant who also was present submitted that there was some misunderstanding in between them and the accused therefore they registered the case and they have no objection if the appeal is allowed and the appellant is acquitted.

9.       Heard arguments of learned counsel for the parties and have minutely gone through the material made available on record with their able assistance.

10.     The meticulous re-appraisal of material brought on the record is entailing that though the prosecution witnesses have tried to support the case of prosecution but their evidence when scrutinized deeply was found coupled with material infirmities/improbabilities. As per the FIR and the other material available on record it reflects that the incident took place on 14-09-2020 and the FIR was registered on 05-02-2021 with the delay of more than four months. The FIR was though registered by the orders of this court however the Constitutional Petition was filed before this court on 13-01-2021. No plausible explanation has been furnished by the complainant. It is settled principle of law that the FIR is always treated as a cornerstone of the prosecution case to establish guilt against those, involved in a crime; thus, it has a significant role to play. If there is any delay in the lodgment of an FIR and commencement of the investigation, it gives rise to doubt, which, of course, cannot be extended to anybody else except to the accused.In the case of Iftikhar Hussain and others v. The State (2004 SCMR 1185), it was held that the FIR lodged after conducting an inquiry loses its evidentiary value.In the case of Zeeshan @ Shani v. The State (2012 SCMR 428), it was held that a delay of more than one hour in the lodgment of FIR givesrise to the inference that the occurrence did not take place in a manner projected by the prosecution and the time was consumed in making effort to give a coherent attire to the prosecution case, which hardly proved successful. In the case in hand as discussed above that the prosecution has failed to explain the delay of about 04 months in registration of FIR. The Supreme Court of Pakistan in the case of Noor Muhammad v. The State(2010 SCMR 97) has held that when the prosecution could not furnish any plausible explanation for the delay of twelve hours in the lodgment of FIR, such time appeared to have been spent in consultation and preparation of the case, the same was fatal to the prosecution case. It was also held by the Supreme Court of Pakistan in the case of Muhammad Fiaz Khan v. Ajmer Khan(2010 SCMR 105) that when the complaint filed after a considerable delay, was not explained by the complainant then in such a situation it raises suspicion as to its truthfulness. Thus, I am of the considered view that in the facts and circumstances of the case at hand, the explanation furnished by the prosecution is not plausible and such delay in the registration of FIR makes the entire case doubtful.

11.     While perusing the evidence of the prosecution witnesses material contradictions and improvements were found, which the learned trial Court did not consider. It reflects from the entire evidence that son of complainant namely Imran Ali was with the accused on the motor bike on his own will and he was not forced to go with him, even otherwise it reflects from the contents of the F.I.R. that the alleged incident is said to have taken place on 14.09.2020, whereas as per evidence of P.Ws including the victim Imran that Imran Ali was allowed to go home after two or three days and thereafter he came to his house, the material placed by the complainant before the trial Court reflects that the complainant filed petition bearing C.P.No.D-28 of 2021, in which order was passed by Division Bench of this Court on 02.02.2021 by directing the petitioner to approach the S.H.O for registration of F.I.R., it reflects that the said Petition was filed on 13-01-2021 with the prayer that the respondent (appellant) may be directed to release his son. Record further reflects that application under section 22-A and B Cr.P.C was also filed by the complainant for the same relief which was dismissed by the Ex-Officio Justice of Peace/Ist. Additional Session Judge Mehar on 12-11-2020 all these factswhen scrutinized deeply it suggested that the prosecution has miserably failed to establish such aspect of the case. The victim Imran Ali deposed in examination-in-chief that he was in the custody and did not join the investigation which too reflects that it was a false case.  Further during investigation appellant was found innocent and said fact has been admitted by the investigating officer before the trial courtwhich toocreates doubt. The complainant and the victim ImranAli were present alongwith their counsel submitted that the case was registered due to some misunderstanding and they have no objection for the acquittal of appellant, which also suggest that the case was registered on false facts.

12.     It is a settled principle of law that no one should be convicted of a crime on the basis of presumption in the absence of strong evidence of unimpeachable character and legally admissible. Similarly, the mere heinous or gruesome nature of crime shall not detract the Court of law in any manner from the due course to judge and make the appraisal of evidence in a laid down manner and to extend the benefit of reasonable doubt to an accused person being indefeasible and inalienable right of an accused. It is also an established principle of law that an accused person is presumed to be innocent until and unless he is proved guilty beyond a reasonable doubt and this presumption of his innocence continues until the prosecution succeeds in proving the charge against him beyond a reasonable doubt on the basis of legally admissible, confidence-inspiring, trustworthy and reliable evidence. It has also been held by the Superior Courts that conviction must be based upon unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused. The rule of giving the benefit of doubt to an accused person is essentially a rule of caution and prudence and is deep-rooted in our jurisprudence for the safe administration of criminal justice. In common law, it is based on the maxim, "It is better that ten guilty persons be acquitted rather than one innocent person be convicted". While in Islamic criminal law it is based on the high authority of sayings of the Holy Prophet of Islam (Peace Be Upon Him): “Avert punishments (Hudood) when there are doubts” and “Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him [accused], let him have his way, because the leader's mistake in pardon is better than his mistake in punishment.” The Honourable Supreme Court has quoted probably the latter part of the last-mentioned saying of the Holy Prophet (PBUH) in case of AyubMasih v. State (PLD 2002 SC-1048)"Mistake of Qazi (Judge)  in releasing a criminal is better than his mistake in punishing an innocent." The same principle has also been followed by the Honourable Supreme Court of Pakistan in recent Judgment in case of Naveed Asghar and 2 others v. The State (PLD 2021 SC-600). It is also settled principle of law that if a single circumstance creates reasonable doubt in a prudent mind about guilt of the accused, then the accused will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in case of Tariq Pervez v. The State reported as (1995 SCMR-1345), wherein the Honourable Supreme Court of Pakistan has held as under:-

"The concept of benefit of doubt to an accused person is deep-rooted in our country for giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is any circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right".

12.     The sequel of above discussion is that the prosecution has miserably failed to establish the guilt against the present appellant beyond shadow of reasonable doubt. Consequently, the conviction and sentence awarded to the appellant by learned trial Court vide impugned judgment was set aside and the instant criminal appeal was allowed resulting to acquittal of the appellant.

14. Above are the reasons of my short order dated 08.05.2023, whereby the instant Criminal Appeal was disposed of accordingly.

                                                                                  JUDGE

Manzoor