IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Jail Appeal No. D – 29 of 2012

Confirmation Case No. D – 05 of 2012

Before:-

Mr.Justice Muhammad Iqbal Mahar

Mr.Justice Irshad Ali Shah

Appellants: Ali Nawaz alias Nazoo and Allah Bux alias Aloo alias Ali Dino, through

Mr. Muhammad Qayoom Arain Advocate

The State : Through Syed Sardar Ali Shah,

Deputy Prosecutor General

Date of hearing : 24.04.2019

Date of decision : 24.04.2019

JUDGMENT

Irshad Ali Shah, J; The appellants by preferring instant Criminal Jail Appeal have impugned the judgment dated 10.05.2012 passed by learned Additional Sessions Judge, Kandiaro, whereby they have been convicted and sentenced as under;

“Accordingly both the accused persons namely Ali Nawaz alias Nazoo and Allah Bux alias Aloo Solangi are convicted u/s 302(b) PPC and sentenced to death. They shall be hanged by their neck till they are dead, subject to confirmation of death sentence by Honourable High Court of Sindh under section 374 Cr.P.C. They are further directed to pay Rs.100,000/- (One lac) each to the legal heirs of the deceased Sawan by way of payment as envisage under section 544-A Cr.P.C. In case of non-payment, they shall further suffer simple imprisonment for 06 months.

It is also proved, that the accused Ali Nawaz alias Nazoo and Allah Bux alias Aloo after committing the murder of deceased Sawan hidden the dead body of deceased at some unknown place in order to causing disappearance of evidence of offence and the dead body was recovered on the pointation of accused, therefore, they both have committed the offence u/s 201 PPC, hence, accused Ali Nawaz alias Nazoo and Allah Bux alias Aloo are convicted and sentenced u/s 201 PPC to rigorous imprisonment for seven years with fine of Rs.50,000/- (Fifty thousand) in default of non-payment of fine, they are further convicted and sentenced to S.I for three months. The accused persons namely Ali Nawaz alias Nazoo and Allah Bux alias Aloo Solangi are produced in custody and remanded back to the Central Prison Sukkur to serve out their sentence.”

2. The narration of the incident is well disclosed in first information report, which reads as under;

“Complain is that I have four sons namely Sanwan aged about 18 years, 2. Sohail aged about 12 years, 3. Zohaib aged about 08 years, 4. Zainul Abdin aged about 06 years. My elder son Sanwan used to ply Chingchi Rickshaw of Sohrab Company as Taxi in Kandiaro Town. In the morning he used to go from village to Kandiaro and in the evening he used to return to home. On 11.07.2005 my son Sanwan went to Kandiro town in Chingchi Rickshaw but did not return till the night. I searched for him and my relatives Illahi Bux s/o Haji Juwan Depar, 2. Anwer S/o Sohrabuddin Depar, 3. Rahib S/o Abdullah Depar, who also used to ply Chingchi Rickshaws as taxi intimated me that today at the noon time my son was with them at bus stop Tharushah, there at about 1130 hours Allah Bux alias Alloo s/o Bakhshal Machhi R/o Village Andal Machhi, Taluka Kandiaro, 2. Ali Nawaz alias Nazoo S/o Sheedo Machhi R/o Khizir Khan Jalalani, District Khairpur and three unidentified persons came at the bus stop, they hired Rickshaw of Sanwan and took him away towards Lakha road side. On coming to know of such fact. I stayed night at my home and in the morning I and my brother-in-law Abdul Shakoor s/o Abdul Latif Depar and my brother Mehmood went to village Andal Machhi there enquired about Allah Bux alis Aloo Machhi, we came to known that since yesterday he has gone to Kandiaro town and has not yet returned. Then we remained in search; on 29.07.2005 our Chingchi Rickshaw, which my son Sanwan used to ply was secured by police party of P.S Mehrabpur suspected to be stolen. Later on we remained in search. Now I have appeared to report that above named accused in connivance with each other have taken away my son Sanwan with intention to commit his murder. Witnesses Illahi Bux Depar, 2. Anwer Depar and 3. Rahib Depar have properly seen and unidentified the accused; they will be identified if are seen again. I am complainant investigation may be conducted.”

3. On investigation, the appellants and co-accused Muhammad Machhi were arrested by the police and reported upon accordingly before the Court having jurisdiction to face trial for the above said offence, at trial, they did not plead guilty to the charge, which was framed against them by learned trial Court for offence punishable under sections 364 and 302/ 34 PPC and prosecution to prove it, examined PW-1 complainant Haji Saeed Ahmed at (Ex.14), he produced FIR of the present case; PW-2 Illahi Bux at (Ex.15), he produced memo of arrest of accused Allah Bux alias Aloo and Ali Nawaz; PW-3 Rahib Ali at (Ex.16); PW-4 Ali Asghar at (Ex.17), he produced memo of place of vardat, memo of recovery of dead body of deceased Sanwan, danistanama, video recording, memo of recovery of lathi from accused Ali Nawaz alias Nazoo and Allah Bux alias Aloo; PW-5 Haji Liaquat at (Ex.19); PW-6 Dr. Din Muhammad at (Ex.20), he produced postmortem report of the dead body of the deceased; PW-7 Fair Muhammad Tanwari at (Ex.21), he produced lash chakas form; PW-8 Tapedar Jalaluddin Bughio at (Ex.22), he produced sketch of vardhat, then prosecution closed the side.

4. After closure of the side by the prosecution, learned trial Court realized that the charge so framed against the appellants and co-accused Muhammad Machhi is not complete, therefore, it was amended thereby Section 201 PPC was added therein.

5. No doubt, Section 227 Cr.P.C empowers the Courts to alter the charge at any time before the judgment but there could be made no denial to the fact that Section 231 Cr.P.C prescribes for recalling of the witnesses when the charge is altered. No witness so examined by the prosecution in the instant case was recalled to be re-examined by learned trial Court. The evidence of the witnesses which was already brought on record by the prosecution was adopted by learned ADPP for the State by making such application it was not objected by learned defence counsel. If for the sake of arguments, it is believed that such adoption of the evidence even after alteration of the charge was legal then there could be made no denial to the fact that the appellants were denied right to make cross‑examination to any of the witness after such alteration of the charge. In that way, it is rightly being contended that the appellants were prejudiced seriously in their defence.

6. The appellants and co-accused Muhammad Machhi in their statements recorded under section 342 Cr.P.C denied the prosecution allegation by pleading innocence by taking cogent pleas, they, however, did not examine anyone in their defence or themselves on oath in disproof of the prosecutions’ allegation in terms of Section 342(2) Cr.P.C.

7. On conclusion of the trial, co-accused Muhammad Machhi was acquitted while the appellants were convicted and sentenced (as is detailed above) by learned trial Court and then a Reference was made by learned trial Court with this Court in terms of Section 374 Cr.P.C for confirmation of their death sentence.

8. Now both, the appeal so preferred by the appellants and the Reference so made by learned trial Court are being disposed of by this Court through single judgment.

9. It is contended by learned counsel for the appellants that they being innocent have been involved in this case falsely by the prosecution; the FIR of the incident has been lodged with unexplained delay of about one month; none has seen the appellants committing the death of the deceased; the medical officer and investigating officer of the case have not been examined by the prosecution on account of their death and the evidence which the prosecution has produced being inconsistent and doubtful has been relied upon by learned trial Court without lawful justification. By contending so, he sought for acquittal of the appellants. In support of his contentions, he has relied upon the case of Akber Ali vs. The State (2007 SCMR 486).

10. Learned DPG for the State has sought for dismissal of the instant appeal by contending that there is strong circumstantial evidence against the appellants which has rightly been believed by learned trial Court.

11. We have considered the above arguments and perused the record.

12. As per complainant Haji Saeed, deceased Sanwan was his son and was running a Chingchi Rickshaw, the deceased gone missing on 11.07.2005 and subsequently he was intimated by PWs Illahi Bux and Rahib that they had seen the deceased going with the appellants and few unknown culprits and on basis of such intimation, he lodged report of the incident with police on 08.8.2005. No cogent reason is advanced by the complainant which could have prevented him from reporting the incident to the police timely soon after missing of his son (the deceased). In that situation, the delay in lodgment of FIR on the part of the complainant which is spreading over one month could not be overlooked.

13. In case of Mehmood Ahmed & others vs. the State & another (1995 SCMR-127), it has been observed by the Hon’ble Apex 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”.

14. Even otherwise, the complainant admittedly is not an eyewitness to abduction or death of the deceased. His evidence, as such is of no help to the case of prosecution. It was stated by PWs Illahi Bux and Rahib that they intimated the complainant that his son the deceased has been seen by them going with the appellants and few unknown culprits through Chingchi Richshaw. It is not made known by them that when and at what time such intimation was furnished by them to the complainant, which has made the very intimation on their part to the complainant to be doubtful. The complainant during course of his examination was fair enough to admit that he got published news in newspaper with regard to missing of his son, the deceased. If for the sake of arguments, it is believed that the complainant was intimated by PWs Illahi Bux and Rahib that his son Sanwan has gone with the appellants and others then there was hardly a need with the complainant to have got published news in daily newspaper with regard to missing of his son, the deceased. In that situation, no much reliance could be placed upon evidence of PWs Illahi Bux and Rahib as they are appearing to be managed witness. They even otherwise have not seen the appellants committing the death of deceased Sanwan. The dead body of the deceased as per prosecution was dug out from the lands of Mirza Ishaque in Deh Totrah, Taluka Mehrabpur, District Naushahro Feroze at the pointation of appellant Ali Nawaz alias Nazoo. Such proceedings were never asked to be witnessed by any Magistrate to maintain the transparency. It was monitored by SIO Allauddin, and he allegedly affected the recoveries of the lathies from the appellants, the prosecution has not been able to examine on account of his death. No doubt, the death is a natural act but there could be made no denial to the fact that non‑examination of SIP/SIO Allauddin in case like the present one and in such situation when the case hinges upon the evidence of SIO/SIP Allauddin, has prejudiced the appellants in their defence seriously. In that situation, the video recording of such proceedings could hardly be used as a conclusive proof to base conviction.

15. The conclusion which could be drawn of the above discussion would be that the prosecution has not able to prove its case against the appellants beyond shadow of doubt and they are found entitled to such benefit.

16. In case of Tarique Pervez vs. The State (1995 SCMR 1345), it has been held by Hon’ble Apex Court that;

“For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt- if a simple circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right.”

17. In view of the facts and reasons discussed above, impugned judgment is set-aside, the appellants are acquitted of the offence for which they were charged, tried and convicted by learned trial Court; they are in jail, they to be released forthwith if not required in any other custody case. The death sentence awarded to the appellants is not confirmed. The Criminal Jail Appeal and the Reference are disposed of accordingly.

Judge

Judge

ARBROHI