IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 130 of 2020

Appellants: Muhammad Arman through Mr. Musharraf Azhar advocate

The State: Through Mr. Khadim Hussain, Additional Prosecutor General Sindh

Date of hearing: 14.12.2022

Date of judgment: 14.12.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant committed murder of Muhammad Feroz by way of asphyxia after subjecting him to unnatural lust by administering him some intoxicant/poisonous substance, for that he was booked and reported upon by the police. On conclusion of trial, he was convicted u/s 302(b) PPC and sentenced to undergo rigorous imprisonment for 25 years; he was further convicted under Section 377 PPC and sentenced to undergo rigorous imprisonment for 10 years with fine of Rs.25,000/- and in default whereof to undergo simple imprisonment for 03 months; both the sentences were directed to run concurrently with benefit of Section 382(b) Cr.P.C by learned IV-Additional Sessions Judge/MCTC-EXT, Karachi South vide judgment dated 31.01.2021, which is impugned by the appellant before this court by way of the instant appeal.

2. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police at the instance of the complainant party and he has been convicted and sentenced by learned trial Court virtually on the basis of no evidence. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt. In support of his contentions, he relied upon case of Mst. Asia Bibi vs. The State and others (PLD 2019 S.C 64).

3. None has come forward to advance arguments on behalf of the complainant. However, learned Addl.PG for the state by supporting the impugned judgment has sought for dismissal of the instant appeal by contending that the appellant has confessed his guilt before the complainant party and the police.

4. Heard arguments and perused the record.

5. Evidence of complainant Muhammad Naeem, P.Ws Shahriver Shah @ Nasir and Muhammad Hamza prima facie suggests that on 01.01.2017, the deceased was brought at his house by the appellant in a rickshaw in unconscious position and he then was taken to Abbasi Shaheed Hospital, Karachi, there he was declared dead; his dead body then was taken to Civil Hospital, Karachi, for postmortem; the appellant was apprehended by them and it was disclosed by him before them that, he has committed the death of the deceased being his friend and he now will have to die; on such disclosure, the appellant was brought by them at PS Nabi Bux, there he was taken into custody by I.O/ASI Babar. As per P.W Dr. Abdul Ghaffar the death of the deceased was result of asphyxia, no poison in viscera of the deceased was found, he however, was found to have been sexually assaulted before his death. No DNA test was arranged to identify the culprit, who sexually assaulted the deceased, such omission on part of the police could not be ignored. The medical officer, who initially examined the deceased at Abbasi Shaheed Hospital Karachi and declared him dead, has not been examined by the prosecution. As per the complainant his 154 Cr.P.C statement was recorded on 02.01.2017. It was recorded by ASI Liaquat Ali of PS Nabi Bux; he too is not examined by the prosecution. None actually has witnessed the appellant committing the alleged incident; the involvement of the appellant in commission of incident is based apparently for the reason that he confessed his guilt before the complainant party. Surprisingly, no question has been put to the appellant during course of his examination under Section 342 Cr.P.C, to have his reply on his alleged extra-judicial confession before the complainant party, as such, same, if any, could not be used against him. It was stated by P.W P.C Muhammad Atiq that during course of inquiry, it was disclosed by the appellant before I.O/SIP Rao Muhammad Anwar that he has committed the alleged incident. Evidence of I.O/SIP Rao Muhammad Anwar is silent with regard to such disclosure. If for the sake of arguments, it is believed that such disclosure was actually made by the appellant before the said I.O/SIP, even then same being inadmissible in evidence in terms of Article 39 of Qanun-e-Shahadat Order, 1984 could not be used against the appellant. No case property is produced by the prosecution at trial. In these circumstances, it would safe to conclude that the prosecution has not been able to prove the involvement of the appellant in commission of the incident beyond shadow of doubt.

6. In case of Muhammad Asif vs the State (2008 SCMR 1001), it has been held by Hon’ble apex Court that;

“…..yet there is a delay of about two hours which has not been explained. Similarly P.W.7 stated during cross-examination that the police reached the spot at twelve noon and about half an hour was consumed in conducting inquest proceedings and thereafter the dead body was sent to the hospital. He further stated that he accompanied the dead body which was taken in a wagon to the hospital and that it took only 15 or 20 minutes in reaching the hospital. In that case the dead body would have been received at the hospital by 1-00 p.m. On the contrary, the doctor, who is an independent witness, stated that he immediately started post mortem examination after the receipt of body and the time of post-mortem given by him was 4-50 p.m. that means that the body remained at the spot for quite some time. The F.I.Rs. which are not recorded at the police station suffer from the inherent presumption that the same were recorded after due deliberations…...”.

7. In case of Tahir Javed vs. the State (2009 SCMR-166), it was observed by Hon’ble Court that;

“---Extra-judicial confession having been made by accused in the presence of a number of other persons appeared to be quite improbable, because confession of such a heinous offence like murder was not normally made in the public”.

8. In case of Haji Nawaz vs. The State (2020 SCMR 687), it has been held by Hon’ble Apex Court that;

“The law is settled by now that if a piece of evidence or a circumstance is not put to an accused person at the time of recording his statement under section 342 Cr.P.C then the same cannot be considered against him for the purpose of recording his conviction.”

9. 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".

10. In view of the facts and reasons discussed above, the conviction and sentence awarded to the appellant by way of impugned judgment are set aside, consequently, he is acquitted of the offence with which he was charged, tried, convicted and sentenced by learned trial Court; he shall be released forthwith, if not required to be detained in any other custody case.

11. The instant appeal is disposed of accordingly.

JUDGE