THE STATE vs SHAMAN and others

1. ' MUKHTAR AHMED JUNEJO, J.--- State has filed this acquittal appeal challenging acquittal of respondents Shaman, Niaz Ahmed and Shahid by the Judge Special Court for Speedy Trials at Sukkur (hereafter to be mentioned as the Special Court) in Special Case No,14 of 1992 under the impugned judgment, dated 6-5-1993.

2. ' Respondents Shahid, Niaz Ahmed and Shaman were tried in said Court for having kidnapped deceased Manzoor Ali for unnatural lust 13 days before 13-4-1992 and for murder of said Manzoor Ali. The case was registered on complaint of Ali Muhammad.

3. ' At their trial, the respondents pleaded not guilty to the charge. Prosecution examined complainant Ali Muhammad Exh.10 and P.Ws. Mashooq Ali Exh.No,6, Ramesh Kumar Exh.No,7, Illah Bux Exh.11, Shah Muhammad Exh.12, Muhammad Pannah Exh.13, Jan Muhammad Exh.14, Arbab Ali Exh.15 and Rahid Khan Exh.16.

4. ' The respondents in their statements Exhs.18, 19 and 20 denied the prosecution allegations and alleged enmity with the complainant party. In defence D.W. Abdul Ghaffar Siddiqui Exh.22 was examined. At conclusion of the trial the respondents were acquitted under a judgment dated 6-5- 1993 and hence this appeal.

5. ' We have heard Mr. Raja Muhammad Irshad learned counsel for the appellant State. He argued that there were three pieces of evidence against the respondents namely extra-judicial confession before Muhammad Panah and Jan Muhammad, judicial confession of Shaman before a Mgistrate and evidence of last seen. While acquitting the respondents, learned trial Judge accepted the evidence of last seen for arriving at the conclusion that the deceased was last seen in company of the three respondents but he took view that the extra-judicial confessin did not come up to the mark, and appeared to be unreliable because none of the respondents had made it and it was made by Dad Muhammad who was not accused in the case. In respect of the judicial confession, learned trial Judge took view that it was not duly proved by the Magistrate Ramesh Kumar and he had committed serious irregularities in recording the same. That the Magistrate had not informed respondent Shaman that his statement under section 164, Cr.P.C. Could be used as evidence against him, and that no certificate under section 164(3) of Cr.P.C. Was given at end of the confession. Learned trial Judge found that evidence of last seen was not sufficient by itself to prove guilt of the accused/respondents.

6. ' We find that the reasoning given by learned trial Judge was correct. Obviously the respondents could not have been convicted on the evidence of last seen coming from P.Ws. Ali Muhammad and Illahi Bux. Moreover, had they seen the deceased with the respondents they would not have kept quiet for 13 days after disappearance of deceased Manzoor Ali and would have immediately lodged report with police. The judicial confession has been rightly excluded from consideration and valid reasons have been given for the same. Moreover, the judicial confession appears to be exculpatory. So-called extrajudicial confession has also rightly been kept out of consideration. We find that in acquitting the respondents/accused, learned trial Judge did not violate any principle of law or ignore any material fact in appraising the evidence on record and the conclusions drawn by him do not suffer from any, patent error or exception. In such situation acquittal appeal was dismissed in the case of State v. Muhammad Amin and others 1985 P Cr. L J 472. In the case of Abdul Majid v. Superintendent and R.LA. Government of East Pakistan PLD 1964 SC 422, it was held that in setting aside an acquittal in a case which rested wholly on direct evidence of witnessses, as much importance must be given as in any other case, to the rule which runs through the criminal jurisprudence of our country as a golden thread that the benefit of every doubt must go to the accused person.

7. ' For the foregoing reasons, the present appeal stands dismissed in limine.