2023 P Cr. L J 1146
Landmark Criminal Appeal: The Case of Athar Abbas Solangi and the Pursuit of Justice"
(اردو زبان میں فیصلے کا خلاصہ)
اس کیس میں اپنے بیٹے کے قتل کے الزام میں ایک شخص کی سزا کے خلاف فوجداری اپیل شامل ہے۔ استغاثہ اپنے کیس کو کسی شک و شبہ سے بالاتر ثابت کرنے میں ناکام رہا، اور بعض حالات میں اپیل کی اجازت دی گئی۔ عدالت نے پایا کہ پراسیکیوشن ملزم کے خلاف اپنا مقدمہ کسی بھی شک و شبہ سے بالاتر ثابت کرنے میں ناکام رہا ہے، اور عدالت نے یہ بھی پایا کہ استغاثہ نے ان کے کیس کی حمایت کے لیے خاطر خواہ ثبوت فراہم نہیں کیے تھے۔
عدالت نے یہ بھی پایا کہ اہم گواہ کا واحد ثبوت، جیسا کہ چشم دید گواہ، جرم ثابت کرنے کے لیے کافی تھا اگر وہ اعتماد ساز اور قابل اعتماد تھا، جس کی تائید دیگر آزاد ذرائع سے کی جاتی ہے۔ تاہم، عدالت نے محسوس کیا کہ آزاد ثبوت کی کمی اور ایف آئی آر درج کرنے اور مزید بیانات ریکارڈ کرنے میں غیر وضاحتی تاخیر کی وجہ سے شکایت کنندہ کا دعویٰ مشکوک تھا۔
عدالت نے شک کے فائدے پر بھی غور کیا، جس کا مطلب ہے کہ اگر کسی ایک شک سے ملزم کے جرم کے بارے میں عقلمند ذہن میں معقول شک پیدا ہوتا ہے، تو ملزم اس طرح کے فائدے کا حقدار ہوگا رعایت اور رعایت کے طور پر نہیں۔ حق کا معاملہ اپیل کنندہ اطہر عباس سولنگی نے اپیل کنندہ کی نمائندگی کی جبکہ ریاست کی جانب سے ریاست کی نمائندگی کی
2023 P Cr. L J 1146
[Sindh (Larkana Bench)]
Before Zulfiqar Ali Sangi, J
BARKAT ALI---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. S-07 of 2019, decided on 10th February, 2023.
(a) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay of two days in lodging FIR---Effect---Accused were charged that they in furtherance of their common intention committed murder of the son of the complainant---Record revealed that FIR of the incident had been lodged with delay of two days after the incident for which no plausible explanation had been furnished---Such delay could not be overlooked, which obviously reflected consultation and deliberation---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.
Riaz Ahmed v. The State 2010 SCMR 846; Abdul Jabbar v. The State 2019 SCMR 129 and Jamal Khan v. The State 2020 PCr.LJ 1589 ref.
Mehmood Ahmed and others v. The State and another 1995 SCMR 127 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Further statement of the witnesses---Scope---Accused were charged that they in furtherance of their common intention committed murder of the son of the complainant---Record showed that the Investigation Officer during course of investigation recorded further statements of the complainant and his witnesses wherein they disclosed that they on query came to know that about 7/8 months prior to the incident, complainant's son was locked in marital tie due to which accused was annoyed and now he came to know that his son had been done to death by accused over the said issue---Further statement of the complainant, if any, even otherwise could not be equated with FIR---If further statements of the complainant and his witnesses were believed to be true then why they remained mum and did not nominate the present accused with his name and parentage in the FIR promptly despite the fact that the present accused was earlier known to them---Said fact was done with inordinate delay of twelve days after the incident, as such, much reliance could not be placed upon further statements of the complainant and his witnesses---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.
Khalid Javed and another v. The State 2003 SCMR 1419 rel.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay of ten days in recording supplementary statements of witnesses---Scope---Accused were charged that they in furtherance of their common intention committed murder of the son of the complainant---Supplementary statements of the complainant and that of his witnesses were recorded ten days after the FIR, which had no legal value and were inadmissible in evidence---Thus, the same could not be used to contradict the contents of the FIR---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.
Syed Saeed Muhammad Shah v. The State 1993 SCMR 550; Amir Zaman v. Mehboob and others 1998 SCMR 685; Zulfiqar Hussain v. The State 2011 SCMR 379; Abid Ali v. The State 2011 SCMR 161; Tahir Abbas v. The State 2003 SCMR 426 and Muhammad Mansha v. The State 2018 SCMR 772 rel.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, common intention---Appreciation of evidence---Withholding material evidence---Effect---Eye-witness given up and not examined---Accused were charged that they in furtherance of their common intention committed murder of the son of the complainant---Record reflected that the prosecution examined complainant and a witness being the eye-witnesses; while another eye-witness, who happened to be brother of the complainant and also uncle of the deceased was given up by the prosecution for no obvious reasons---Inference which could be drawn of his non-examination was that he might not have supported the case of prosecution as per Art. 129(g) of Qanun-e-Shahadat, 1984---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.
(e) Criminal trial---
----Sole evidence of material witness---Scope---No doubt, the sole evidence of a material witness i.e. an eye-witness was always sufficient to establish guilt of the accused if the same was confidence-inspiring and trustworthy and supported by other independent source of evidence because the law considered quality of evidence and not its quantity to prove the charge---Accused could be convicted if the Court found the direct oral evidence of one eye-witness to be reliable, trustworthy and confidence-inspiring.
Muhammad Ehsan v. The State 2006 SCMR 1857; Niaz-Ud-Din v. The State 2011 SCMR 725 and Allah Bakhsh v. Shammi and others PLD 1980 SC 225 rel.
(f) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Omissions and inconsistencies between the evidence of the witnesses---Effect---Accused were charged that they in furtherance of their common intention committed murder of the son of the complainant---Record showed that the complainant in his examination-in-chief deposed that while they were returning from a town and going towards another place, the motorcycle of deceased was going in front of them about 50 feet away and when they reached near a tree at link road leading from town to village two motorcycles came behind them, and they had seen and identified accused sitting on a motorcycle whereas other accused persons were unknown---Such version of complainant was belied by his own eye-witness who deposed that four unidentified accused came on motorcycle and one of them fired at deceased---Over and above that, the complainant had also failed to bring on record the mode of information or produced any person through whom he received information about murder of his son at the hands of the present accused---Moreover, no independent piece of evidence had been collected by the Investigation Officer during course of investigation which might justify connectivity of the present accused with commission of the alleged offence---Omissions and inconsistencies between the evidence of the prosecution witnesses, if judged in the light of unexplained and un-plausible delay in lodging of the FIR and that of recording further statements of the complainant and his witnesses, had rendered the entire claim of the complainant doubtful---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.
(g) Criminal trial---
----Benefit of doubt---Principle---If a single doubt created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to such benefit not as a matter of grace and concession, but as a matter of right.
Ayub Masih v. State PLD 2002 SC 1048; Naveed Asghar and 2 others v. The State PLD 2021 SC 600 and Tariq Pervez v. The State 1995 SCMR 1345 rel.
Athar Abbas Solangi for Appellant.
Aitbar Ali Bullo, D.P.G. for the State.
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