IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Appeal No. S-33 of 2022

  

       

Appellants:                          1. Ayaz Ali son of Aijaz Hussain Sahito.

                                                2. Zeeshan son of Taj Muhammad Arain.

 

                                                Through Mr. Achar Khan Gabole, Advocate.

 

The State:                              Syed Sardar Ali Shah Rizvi, Additional Prosecutor General Sindh.

 

Complainant:                      In person.

 

Date of hearing:                  27-01-2023

Date of judgment:              27-01-2023

 

 

J U D G M E N T

 

IRSHAD ALI SHAH, J- It is the case of the prosecution that the appellants in furtherance of their common intention attempted to commit carnal intercourse with PW/victim Ihsan Ali; a boy aged about 14 years, recorded obscene video and then made it viral in social media, for that they were booked and reported upon. On conclusion of trial, they were convicted for the said offence and sentenced to various terms of imprisonment by learned Additional Session Judge/Gender Based Violence Court Naushahro Feroze vide judgment dated 13-04-2022, which is impugned by the appellants by preferring the instant Crl. Appeal.

2.         It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the police at the instance of complainant party; the FIR of the incident has been lodged with delay of about 02 months; the evidence of the PWs being doubtful in its character has been believed by the learned trial Court without assigning cogent reasons, therefore, the appellants are entitled to their acquittal by extending them benefit of doubt.

3.         Learned Additional P.G for the State who is assisted by the complainant by supporting the impugned judgment has sought for dismissal of instant Crl. Appeal by contending that the prosecution has been able to prove its case against the appellants beyond shadow of doubt and the offence which they have committed is affecting the society at large.

4.         Heard arguments and perused the record.

5.         Complainant Wali Muhammad is not an eyewitness to the incident, therefore his evidence hardly lend support to the case of prosecution. PW/victim Ihsan Ali has implicated the appellants in commission of incident by stating that they attempted to commit carnal intercourse with him and recorded obscene video, which they made viral in social media. His evidence is not transpiring confidence to base conviction for the reason that the action was delayed by him for about two months without plausible explanation. As per I.O/SIP Mashooq Ali he secured the USB containing the obscene video of PW victim Ihsan Ali on having been produced by the complainant under memo. It was neither supplied to the appellants, nor has been subjected to Forensic test or displayed at trial  nor  any  question  has  been  put to the appellants with its  recovery or  otherwise  during  course  of  their  examination u/s 342 Cr.P.C to have their explanation on it, as such same could not be used against them.

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

7.         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…...”.

 

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

“The law is settled by now that if a piece of evidence or circumstances is not put an accused persons at the time of recording his statement u/s 342 Cr.P.C, then same cannot be considered against him for 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 appellants by way of impugned judgment are set aside, consequently, they are acquitted of the offence with which they were charged, tried, convicted and sentenced by learned trial Court; they are present in Court on bail, their bail bonds are cancelled and sureties are discharged.

 

11.       The instant Crl. Appeal is disposed of accordingly.

 

 

JUDGE

Nasim/P.A