Sanwal alias Charya vs The State
This criminal appeal challenges the conviction and sentence of the appellant for the murder of Hafiz Talha under sections 302/34 of the Pakistan Penal Code 1860. The appellant was sentenced to ten years of rigorous imprisonment by the trial court. The core legal questions were whether the prosecution successfully proved the appellant's guilt beyond reasonable doubt, specifically regarding the admissibility of an extra-judicial confession made to police and the evidentiary value of a weapon recovery where the recovery witness was not examined and the forensic report was not put to the accused during his examination. The Sindh High Court held that the prosecution failed to prove the case. The court ruled that a confession made to police is inadmissible under Article 39 of the Qanun-e-Shahadat Order, 1984, and that the failure to confront the accused with the forensic report during his examination under section 342 of the Code of Criminal Procedure 1898 renders the recovery inconsequential. Consequently, the conviction was set aside, and the appellant was acquitted based on the principle that any reasonable doubt entitles an accused to acquittal as a matter of right.
- Is a confession made by an accused to police officials admissible in evidence?
- Does the failure to put a forensic report to an accused during his examination under section 342 of the Code of Criminal Procedure 1898 render the recovery of a crime weapon inconsequential?
- Is it necessary to have multiple circumstances creating doubt to grant the benefit of doubt to an accused?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 382-B, Code of Criminal Procedure 1898
- Article 39, Qanun-e-Shahadat Order 1984
- Section 342, Code of Criminal Procedure 1898
IRSHAD ALI SHAH, J. It is alleged that the appellant with rest of the culprits in furtherance of their common intention committed murder of Hafiz Talha by causing him fire shot injuries, for that he was booked and reported upon. After due trial, he was convicted under sections 302/34, P.P.C. and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs.30,000/- and default whereof to undergo simple imprisonment for 03 months with benefit of section 382-B, Cr.P.C, without specifying as to under what clause of section 302, P.P.C., he was going to be convicted by learned Additional Sessions Judge-IV, South camped at Judicial Complex, Central Prison, Karachi vide judgment dated 04.01.2018, which is impugned by the appellant before this Court by preferring the instant appeal from jail.
2. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police, otherwise he was nothing to do with the alleged incident and has been convicted and sentenced by learned trial Court virtually on the, basis of no evidence, therefore, he is entitled to his acquittal by extending him benefit of doubt, who even otherwise is about to complete his jail term.
3. Learned D.P.G for the State by supporting the impugned judgment has sought for dismissal of instant jail appeal, by contending that on arrest from the appellant has been secured the incriminating pistol, which was found matched with the empties secured from the place of incident.
4. Heard arguments and perused the record.
5. It was intimated to SIP Arab Hussain that the dead body of the deceased has been brought at Civil Hospital, Karachi. On such information he went there and then lodged FIR of the above incident on behalf the State with Police Station Eidgah Karachi South against unknown culprits and subsequently, it was disposed of under "A" class. After lapse of about two years, the appellant was arrested by SIP Qadir Khan of Police Station CTD Garden East, Karachi together with unlicensed pistol. of 9 mm bore. SIP Qadir Khan who allegedly has recovered the incriminating pistol from the appellant has not been examined by the prosecution, for no obvious reason, such omission apparently has defeated the alleged recovery. The appellant, it is said during course of interrogation of present case, admitted before SIO/SIP Rafiq Ahmed and P. Ws PCs Muhammad Idrees and Waheed Khan that he, Saleem and Moiz have committed death of the deceased by causing him fire shot injuries at the instance of Aamir Billa. If for the sake of arguments, it is believed that such statement was made by the appellant before, police officials, even then it could not be relied upon being inadmissible in evidence in terms of Article 39 of the Qanun-e-Shahadat Order, 1984. The pistol allegedly recovered from the appellant was found to be matched with the two empties after two years. On point of safe custody whereof none has been examined by the prosecution. No question has been put to the appellant during course of his examination under section 342, Cr.P.C to have his explanation on point of recovery of alleged crime weapon from him and report of D forensic expert, therefore, in that situation the appellant could hardly be connected with such recovery. In these circumstances, it could be concluded safely that the prosecution has not been able to prove the involvement of the appellant in present case beyond any shadow of doubt.
6. In case of Nadeem alias Kalia v. The State and others (2018 SCMR 153), it has been held by Hon'ble Apex Court that; "............ Even otherwise, the said recovery is inconsequential because report of Forensic Science Laboratory was not put to the appellant while examining him under section 342, Code of Criminal Procedure."
7. In case of Muhammad Mansha v. 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".
8. In view of 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 and convicted by learned trial Court and he shall be released forthwith, if not required to be detained in any other custody case.
9. The instant appeal is disposed of accordingly.