IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA.
Crl. Appeal No. S –09 of 2021
Appellant: Aziz Ahmed s/o Muhammad Ali Pirzado Through Mr.Asif Ali Abdul Razzak Soomro, Advocate.
The State: Through Mr. Ali Anwar Kandhro, Addl.P.G.
Date of hearing: 20-04-2023.
Date of decision: 20-04-2023.
JUDGMENT
IRSHAD ALI SHAH, J;- Facts in brief necessary for disposal of instant criminal appeal are that the appellant allegedly besides committing rape with PW Mst.Farzana, robbed her of Rs.3000/-, for that he was booked and reported upon by the police. On conclusion of trial, he was convicted under Section 376 PPC and sentenced to undergo imprisonment of 20 years with fine of Rs.300,000/- payable to PW/victim Mst.Farzana and in default whereof, to undergo simple imprisonment for 15 months, by learned 4th Additional Sessions Judge/GBVC, Dadu, vide judgment dated 29.01.2021, which he has impugned before this Court by way of instant criminal appeal.
2. It is contended by learned counsel for the appellant that he being innocent has been involved in this case falsely by the police and has virtually been convicted and sentenced by learned trial Court on the basis of no evidence, therefore, is entitled to be acquitted by extending him 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 is the case of prosecution that PW Lal Bux intimated ASI Khan Muhammad at P.S, Nau Goth, Dadu, that he is suspecting the appellant to have subjected his daughter PW Mst.Farzana to rape. On the basis of such intimation, said ASI recorded FIR of the present case on behalf of the State; it was on 3rd day of the incident; no explanation to such delay is offered. On asking, complainant ASI Muhammad Khan was fair enough to admit that neither PW Lal Bux nor his daughter PW/Victim Mst.Farzana took the name of the appellant. If it was not taken by them then at whose instance, it was disclosed in FIR; it appears to be mystery. On investigation, it was stated by I.O/SIP Abdul Majeed that he got recorded 164 Cr.PC statement of PW/Victim Mst.Farzana through Judicial Magistrate, Khairpur Nathan Shah wherein it was stated by her that one police constable has subjected her to rape. In such situation, it was obligatory upon the police to have subjected the appellant to identification parade in order to ascertain that he was actual culprit of the incident; it was not conducted; such omission on the part of police could not be overlooked. Not only this, the DNA report of PW/Victim Mst.Farzana as per PW/WMO Dr.Shamsunisa was found to be in negative; it obviously is not implicating the appellant in commission of the incident; the only reason which apparently has prevailed with learned trial Court to convict the appellant for the said offence was his identity by PWs Lal Bux and Victim Mst.Farzana at trial which could hardly be justified in the circumstances of the present case. The appellant in his statement recorded U/S.342 Cr.PC by pleading innocence has stated that he being police constable has been involved in this case falsely by his SHO. If his statement is considered in juxta-position with the evidence of PWs, then it appears to be somewhat cogent. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt and to such benefit, he is found entitled.
5. In case of Mehmood Ahmed & others vs. the State & another (1995 SCMR-127), it was observed the Apex Court that;
“Delay of two hours
in lodging the FIR
in the particular circumstances of the case had assumed great significance as
the same could be attributed to consultation, taking instructions and calculatedly
preparing the report keeping the names of the accused open for roping in such
persons whom ultimately the prosecution might wish to implicate”.
6. In case of Abdul Khaliq vs. the State (1996 SCMR 1553), it has been observed by the Apex Court that;
“----S.161---Late recording of statements of the prosecution witnesses under section 161 Cr.P.C. Reduces its value to nil unless delay is plausibly explained.”
7. In the case of Sohail Abbas and others vs. Kashif and others (PLD 2001 S.C 546), it has been observed by Apex Court that;
“There is nothing available on record to indicate why identification parade of the accused persons was not held. Admittedly they were not known to the witnesses and in such circumstances if identification parade is not held, it becomes virtually impossible, in absence of any other evidence, to connect, with the alleged occurrence. The witnesses in their statements under section 161, Cr.P.C. did not mention the features of the accused persons nor other description like height and weight. They saw the accused for the first time in Court after about 2 years. In such circumstances, their asserting that the accused are the same who had committed the murder, no importance can be attached to it in the absence of any identification parade.”
8. In the case of Muhammad Mansha vs. The State (2018 SCMR 772), it has been held by 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 for 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.
JUDGE