SHC sets aside death sentence of man in kidnapping and murder case

The Sindh High Court (SHC) on Friday set aside death sentence of a man in a kidnapping and murder case, observing that the prosecution had failed to prove charges against him.

Mohammad Arshad was sentenced to death by a district and sessions court Malir for kidnapping a youth, Gulfaraz, and later killing him on August 10, 2017.

According to the prosecution, the appellant had kidnapped 21-year-old Gulfaraz and later killed him and dumped his body into a vacant plot in Gulshan-e-Maymar.

A counsel for the appellant submitted that the registration of the FIR was delayed and no plausible explanation had been given by the prosecution with regard to the motive of the murder. He submitted that there was no independent eyewitness of the occurrence besides there were various improvements in the statements of witnesses under the Code of Criminal Procedure.

He submitted that no private persons of the locality were called in to act as a witness at the time of the alleged recovery of the body and the extra-judicial confession of the appellant was not admissible as evidence to prove his guilt.

An additional prosecutor general supported the impugned judgment and requested the high court to dismiss the appeal.

A division bench of the SHC comprising Justice Mohammad Karim Khan Agha and Justice Khadim Hussain Tunio after hearing the arguments and perusal of evidence observed that Gulfaraz disappeared on August 10, 2017 and his body was found on September 16, 2017, but that occurrence went unwitnessed.

The bench observed that the complainant did not try to immediately lodge an FIR regarding the incident of disappearance and he was unable to furnish any explanation as to why that delay occurred.

The high court observed that the appellant had allegedly confessed to murder of the complainant’s brother during an investigation into another case and his statement was made the basis of the FIR with regard to the murder of the deceased youth.

The SHC observed that extrajudicial confession before the police was not an admissible piece of evidence that could be used against an accused.

The high court observed that the investigation officer had admitted that he did not get the appellant’s confessional statement recorded before a judicial magistrate nor did he make efforts for moving such an application which again was another surprising aspect of the case.

The SHC observed that mere pointing out of a body without any substantive evidence was insufficient to form the basis of conviction.

The bench observed that the murder had gone unwitnessed and nothing was directly pointing to the appellant as the one responsible for the murder. The high court observed that the investigation officer failed to conduct an impartial investigation by involving all potential parties such as owner of the plot wherefrom the body was recovered as a possible accomplice.

The SHC observed that the trial court conviction in the case involving capital punishment was based on evidence without properly assessing its probative values.

The high court observed that the prosecution had failed to prove the guilt of the appellant beyond any reasonable doubt and resultantly, the conviction and sentence awarded to the appellant by the trial court were liable to be set aside.

The SHC acquitted the appellant in the case and ordered his release if not required in other cases.