IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA.

Crl. Jail Appeal No. D –80 of 2019

Before:

                                                Mr. Justice Irshad Ali Shah.

                                                                                    Mr. Justice Zulfiqar Ali Sangi.

Appellants:                          1). Khadim Hussain.

                                                2). Mushtaque.

                                                3). Nayyar Hussain.

                                                4. Anwar Ali @ Anoo @ Ashique Ali.   

Through Mr.Abdul Rehman Bhutto, Advocate.

The State:                              Through Mr. Ali Anwar Kandhro, Addl.P.G.

Date of hearing:                  28-03-2023.

Date of decision:                 28-03-2023.

JUDGMENT

IRSHAD ALI SHAH, J; The facts in brief necessary for disposal of instant criminal jail appeal are that the appellants with rest of the culprits, besides committing robbery abducted complainant Muhammad Khan for ransom, for that they were booked and reported upon by police. On conclusion of trial, they were convicted to various terms of imprisonment spreading over life with fine, by learned Judge, Anti Terrorism Court, Larkana vide judgment dated 14.11.2019, which they have impugned before this Court by preferring the instant criminal appeal from Jail.

2.         It is contended by learned counsel for the appellants that they being innocent have been involved in this case falsely by the police at the instance of complainant; the FIR of the incident has been lodged with delay of about 40 days and evidence of the PWs being doubtful in its character has been believed by learned trial Court without lawful justification, therefore, the appellants are entitled to their acquittal by extending them benefit of doubt, which is opposed by learned Addl.P.G for the State by supporting the impugned judgment.

3.         Heard arguments and perused the record.

4.         It was stated by complainant Muhammad Khan that on the date of incident he was going to Larkana from Dadu with his Car, when reached at Nasirabad Mehar road, was confronted by six armed persons who besides committing robbery, abducted him for ransom was confined illegally by them at different places, finally was got released by police party of P.S, Thariri Mohabat, led by PW/SIP Sibgatullah, after an armed encounter, whereby the appellants were apprehended alongwith their respective weapons while rest of the culprits made their escape good. The lodgment of the FIR by the complainant after his release from the captivity, with delay of about 40 days is appearing to be un-natural; therefore, such delay could not be lost sight of. As per PW/SIP Sibgatullah, during course of such encounter, none sustained fire shot injury though it continued for about 20/25 minutes, which besides appearing to be surprising is reflecting doubt over its veracity; such doubt takes support from the version of complainant whereby he stated that he heard no fire shot report. On remand of the case, the complainant was not able to identify the appellants. PWs/SIP Sibgatullah and ASI Ghulam Mustafa were not able to identify the appellants at trial by their names; such failure on their part could not be overlooked. The appellants could hardly be connected with the alleged recovery of weapons from them for the reason that those as per PW/SIP Sibgatullah were neither sealed at the spot nor were sent to Ballistic Expert for its examination. As per I.O/SIP Ghulam Muhammad, the 161 Cr.PC statements of the PWs were recorded on different dates. Why on different dates? No explanation to it is offered. No ransom was paid. There is no recovery of any of the robbed article from the appellants. The Car whereby the complainant was travelling at the time of incident has not been produced at trial. PW Noor Ahmed who happened to be brother of the complainant has not been examined by the prosecution. The inference which could be drawn of his non-examination under Article 129(g) of Qanun-e-Shahadat Order, 1984, would be that he was not going to support the case of prosecution. In these circumstances, it could be concluded safely that the prosecution has not able to prove its case against the appellants beyond shadow of doubt and to such benefit they too are found entitled.

5.       In case of Imran Ashraf and others vs. The State (2001 SCMR-424), it has been observed by the Hon’ble Apex 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”.

6.         In 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".

7.         Having concluded above, the conviction and sentence awarded to the appellants by way of impugned judgment are set-aside, consequently, they are acquitted of the offence for which they were charged, tried, convicted and sentenced by learned trial Court; they shall be released forthwith, if not required to be detained in any other custody case.

8.         The instant criminal jail appeal is disposed of accordingly.

                 JUDGE

JUDGE