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