JUDGMENT SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Jail Appeal No.D-58 of 2019

Present:

Mr. Justice Zafar Ahmed Rajput

Mr. Justice Irshad Ali Shah.

Appellant: Noor Muhammad son of Allah Warayo Solangi (Now confined at Central Prison Sukkur).

Through Mr. Nisar Ahmed Bhanbhro, advocate

The State: Through Mr. Zulfiquar Ali Jatoi, Additional Prosecutor General, Sindh

Complainant: Through Mr. Shabbir Ali Bozdar, advocate.

Date of hearing: 19-01-2023

Date of judgment: 19-01-2023

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant abducted Akhtiar Ali, boy aged about 04 years, subjected him to unnatural lust, committed his murder and then caused disappearance of evidence by concealing his dead body in Banana garden of Qazi Mian Muhammad, in order to save himself from legal consequences, for that he was booked and reported upon by the Police. On conclusion of trial, he was convicted for the said offence and sentenced to undergo various terms of imprisonment spreading over life by learned Judge, Anti Terrorism Court, Naushahro Feroze vide judgment dated 19^th April 2019, which is impugned by the appellant before this Court by preferring the instant Crl. Jail 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; it was unseen incident; the investigation was dishonest one, even the mashirnama of place of indient was prepared with delay of about one month and evidence of the PWs being doubtful in its character has been relied upon by learned trial Court without assigning cogent reasons. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt. In support of his contention, he has relied upon the cases of Abdul Mateen Vs. Sahib Khan and others (PLD 2006 Supreme Court 538) and Muhammad Javed Vs. The State (2019 SCMR 1920).

3. Learned Additional P.G for the State and learned counsel for the complainant by supporting the impugned judgment have sought for dismissal of instant Crl. Jail Appeal by contending that the deceased was seen lastly in company of the appellant and he has also confessed his guilt before the complainant party and police and prosecution has been able to prove its case against him beyond shadow of doubt.

4. Heard arguments and perused the record.

5. It was stated by complainant Ariz Muhammad that his son Akhtiar Ali when was playing in the street adjacent to his house gone missing. It was intimated to him by PWs Hanif and Muhammad Azeem that they have seen Akhtiar Ali in company of the appellant, therefore he and the said PWs went to the appellant, who after seeing them, made his escape good, but on next date he intimated them that he after committing death of Akhtiar Ali has thrown his dead body in Banana garden of Qazi Mian Muhammad and then led them to the recovery of the dead body of Akhtiar Ali. It was taken to Hospital and incident then was reported to the police. The formal FIR was lodged on 5^th day of the incident; such delay having not been explained plausibly could not be overlooked; it obviously is reflecting consultation and deliberation. PWs Hanif and Muhammad Azeem have attempted to support the complainant. On asking it was stated by PW Hanif that he was not examined by the police. On asking, it was stated by PW Muhammad Azeem that he was examined by the police, even before the lodgment of the FIR. However, they were fair enough to admit that beside the appellant few more persons were arrested by the police during course of investigation suspecting them to be involved in commission of incident. If it was so, then their version to have seen the deceased lastly in company of the appellant and he led them to recovery of the dead body of the deceased, is appearing to be doubtful. No DNA test was conducted, which was essential to identify the real culprit of the incident; such omission could not be overlooked. It was stated by I/O SIP that on arrest appellant confessed guilt before him. If for the sake of arguments, it is believed to be so, even then such confession being extra judicial in terms of Article 39 of Qanoon-e-Shahdat Order 1984 could not be used against the appellant as evidence. In these circumstances it could be concluded safely that the prosecution has not been able to prove the involvement of the appellant in commission of incident beyond shadow of doubt and to such benefit, he is found entitled.

6. In case of Imran Ashraf and others vs. the State (2001 SCMR 424), it was observed by Hon’ble Court that;

“Section 154, Cr.P.C. lays down procedure for registration of an information in cognizable cases and it also indeed gives mandatory direction for registration of the case as per the procedure. Therefore, police enjoys no jurisdiction to cause delay in registration of the case and under the law is bound to act accordingly enabling the machinery of law to come into play as soon as it is possible and if first information report is registered without any delay it can help the investigating agency in completing the process of investigation expeditiously”.

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 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".

9. 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.

10. Above are the reasons of the short order of even date, whereby the instant Crl. Jail Appeal was allowed.

JUDGE

Nasim/P.A