IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA.

Before:

Mr. Justice Irshad Ali Shah.

Mr. Justice Arbab Ali Hakro.

( Criminal Appeal No. S–14 of 2021 )

Appellant: Israr son of Muhammad Ayaz Channo

Through Mr. Javed Ahmed Soomro, Advocate.

The State: Through Mr. Ali Anwar Kandhro, Addl.P.G.

( Criminal Appeal No. S–17 of 2021 )

Appellant: Rizwan son of Shahanshah Syed

Through Mr.Asif Ali Abdul Razzak Soomro, Advocate.

The State: Through Mr. Ali Anwar Kandhro, Addl.P.G.

( Criminal Revision Appln.No. D–04 of 2021 )

Applicant/Complainant: Mushtaque Ali son of Mumtaz Ali Siyal

Through Mr.Waqar Ahmed Chandio, Advocate.

Respondents No.1&2: Through Mr.Asif Ali Abdul Razzak Soomro & Javed Ahmed Soomro, Advocates.

The State: Through Mr. Ali Anwar Kandhro, Addl.P.G.

Date of hearing: 24-05-2023.

Date of decision: 24-05-2023.

JUDGMENT

IRSHAD ALI SHAH, J. It is alleged that the appellants with rest of the culprits, in furtherance of their common intention attempted to subject Ashfaque Hussain to carnal intercourse and on resistance, committed his murder by causing him knife injuries, for that the present case was registered. On conclusion of trial, co-accused Najeebullah and Qadeer were acquitted while the appellants were convicted U/S. 302(b) PPC as Tazir and sentenced to undergo rigorous (imprisonment) for 15 and 10 years respectively and to pay compensation of Rs.500,000/- to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for six months with benefit of Section 382-B Cr.PC, which they have impugned before this Court by preferring two separate appeals, while the complainant has sought for enhancement of their sentence by preferring a Crl.Revision Application.

2. It is contended by learned counsel for the appellants that they being innocent have been involved in this case falsely by the police; the complainant was declared hostile and evidence of the PWs has been believed by learned trial Court without lawful justification. By contending so, they sought for their acquittal by extending them benefit of doubt.

3. It is contended by learned Addl.P.G for the State and learned counsel for the complainant that on arrest from appellant Rizwan has been secured incriminating knife and he has also confessed their guilt before media, it is recorded in USB; both the accused are vicariously liable for commission of the incident. By contending so, they sought for dismissal of their appeals and enhancement of sentence to them adequately as is prescribed by law or alternatively they suggested for remand of the case to learned trial Court for re-writing of the judgment for adequate punishment to the appellants as per law.

4. Heard arguments and perused the record.

5. The FIR of the incident has been lodged with delay of about three days and such delay having not been explained plausibly could not be overlooked. As per narration made by the complainant in his FIR, the appellants and others attempted to subject his son Ashfaque Hussain to carnal intercourse and on his resistance, committed his death by causing him knife injuries; such act was witnessed by him, PWs Masood Ahmed and Muhammad Muslim. At trial, on account of his failure to support the case of prosecution, he was declared hostile. It was stated by PWs Masood Ahmed and Muhammad Muslim that the appellants and others committed death of the deceased; their 161 Cr.PC statements as per Investigating Officer SIP Sartaj Ahmed have been recorded on 08.09.2018. It was with delay of about 13 days even to lodgment of FIR which was lodged on 28.08.2018; no explanation to such delay is offered. Even otherwise, on asking, the complainant was fair enough to admit that neither he, nor his witness has witnessed the incident; such admission on his part prima facie suggests that the incident was unseen one. Further, it was Arshad Shah who as per complainant intimated him about the incident but he has not been examined by the prosecution; his non examination could not be ignored. In such situation, the evidence of the complainant and his above named witnesses could hardly be relied upon to maintain conviction. On investigation as per Investigating Officer SIP Niaz Hussain, appellant Rizwan was apprehended and from him was secured knife and belongings of the deceased and he also confessed his guilt before him. If for the sake of arguments, it is believed that such confession was actually made by the appellant before him, even then same in terms of Article 39 of Qanun-e-Shahadat Order, 1984 could not be used against him as evidence. Appellant Israr Ahmed on investigation, as per Investigating Officer SIP Sartaj Ahmed was let off by him by placing his name in Column No.2 of the charge sheet. The video recording which is preserved in USB whereby appellant Rizwan has allegedly admitted his guilt before media, has not been produced in evidence; it has not been subjected to forensic test and no question with regard to its being available has been put to appellant Rizwan during course of his examination under Section 342 Cr.PC to have his explanation on it, therefore, it would be hard to rely upon the same. The belongings of the deceased and incriminating knife; appellant Rizwan is alleged to have been foisted upon him by the police being easily available in market; such recovery even otherwise is not enough to improve the case of prosecution in absence of direct evidence. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove the involvement of the appellants in commission of the incident beyond shadow of reasonable doubt and to such benefit they are is found entitled; thus the remand of the case for re-writing of the judgment would serve no purpose.

6. 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”.

7. 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.”

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 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; they shall be released forthwith, if are not required to be detained in any other custody case.

10. The instant criminal appeals are allowed while the Crl.Revision Application having become infructuous is dismissed accordingly.

JUDGE