IN THE HIGH COURT OF SINDH, KARACHI

Criminal Jail Appeal No. 455 of 2018

Muhammad Zia-ul-Haque @ Commondo.…….……………….…...Appellant

Versus

The State.…...........................................................................…Respondent

Ms. Abida Parveen Channer, advocate for pauper appellant

Mr. Sagheer Abbasi, APG for State

Date of hearing: 24.09.2018.

Date of Judgment: 24.09.2018.

J U D G M E N T

Fahim Ahmed Siddiqui, J- This Appeal impugns the judgment of the learned Additional Sessions Judge-I, Karachi South dated 27.04.2013, pronounced in Sessions Case No. 355/2008, whereby the appellant was found guilty and a period of incarceration of 14 years as Ta'zir was suggested by the trial Court for the murder of a person namely Pappu. The appellant preferred the instant appeal from Jail, which was admitted and being juvenile as well as involved in a case of capital punishment, the legal assistance was provided to the appellant on state expenses.

2. The trial Court has declared the appellant as juvenile and thereafter charge was framed upon him on 06-02-2009 as under:-

"I, Miss Hafiza Usman, 1^st Additional District & Sessions Judge, Karachi South, do hereby charge against you accused.

Muhammad Zia-ul-Haq alias Commando

S/O Abdul Karim (Juvenile Offender)

That on 11-06-2008, at about 13:30 hours, near Sherazi Imam Bargah, opposite Irani Manzil, Kharadar Karachi, you the juvenile offender intentionally committed Qatl-i-Amd of deceased Pappu S/O not known by inflicting Churri (dagger) injuries. As such thereby you have committed an offence punishable U/S 302 PPC, and within the cognizance of this court.

And as such, I hereby direct that you be tried by this court on the above charge."

3. The appellant did not plead guilty and claimed trial, hence subsequent to framing the charge, trial initiated and the prosecution examined as many as nine witnesses. After closure of prosecution side, the statement of the appellant/convict was recorded under Section 342 CrPC in which he again denied all the allegations levelled against him and declared the prosecution witnesses as interested and partisan. Nevertheless, trial court came to conclusion that the appellant is guilty, hence the aforementioned judgement was passed against him.

4. While pressing the instant appeal, the learned counsel for the appellant submits that the appellant is a juvenile and as per the prosecution witnesses, the appellant and deceased both are addicts and they were under the fit of narcotics at the time of incident. She submits that all these things mentioned by the prosecution witnesses are only words of mouth and no tangible evidence is produced. According to her, the entire prosecution case rest on hearsay evidence and in the instant case no witness of ocular account is available. She submits that the alleged eyewitnesses of the incident are set up witnesses, which transpires from the deposition recorded before the trial Court. According to her, the prosecution has collected no convincing material during investigation and ultimately nothing convincing was produced during trial. She submits that even the name of the deceased could not be deciphered by the prosecution and he was named in charge as pappu without any parentage.

5. On the other hand, the learned APG supports the impugned judgement by submitting that there are eyewitnesses of the incident. He submits that the appellant and the deceased both are addicts of narcotics and the deceased was living on the streets and nothing was known about his family, as such his proper name could not be discovered. He further submits that the appellant during investigation has admitted his guilt, which was established through credible evidence before the trial Court. Regarding the age of the appellant, the contention of learned APG is that his age is at borderline, as such being juvenile sufficient benefits have been given by the trial Court, as such the judgment of trial Court should be maintained.

6. I have heard the arguments and have gone through the available record. The factual position is that the appellant was arrested in June 2008 and since then he is continuously in jail. The trial Court has awarded incarceration of 14 years only from which maximum period has already been passed. Besides there are certain things which requires consideration. It is the case of the prosecution that the appellant and deceased both are addicts but this fact was neither mentioned in the charge nor the prosecution bothered to medically examine the appellant to establish that he is addict of some narcotics. Similarly, nothing on the record through which the contention of the prosecution about addiction of the deceased could be established. It is worth noting that the prosecution witnesses, especially the alleged eyewitnesses have repeatedly stated that the appellant and the deceased were addict of narcotics but in this respect, there is only their words, which are not supported from any credible evidence.

7. It is the case of the prosecution that ASI Pyar Ali is the eyewitness of the incident and he has seen the appellant at the time of commissioning of the alleged offence. As per the deposition of ASI Pyar Ali, on 11-6-2008, he was on duty along with his subordinate HC Irshad at Sarrafa Bazar, when he heard some commotion and he and his associates attracted towards the scene and saw that two addict persons were fighting, amongst them one stabbed the other with a knife. The said person tried to escape but was apprehended by the public and then he brought him at police station where case was registered. It is worth noting that ASI Pyar Ali has not arrested the appellant but according to him he was arrested by some members of the public but none of those who have arrested the appellant were made witness of the case. As far as the evidence of ASI Pyar Ali is concerned, the same appears to be suffering from improvement as along with him, HC Muhammad Irshad was also available and regarding the incident the deposition of Muhammad Irshad is meaningful. This witness in his deposition says that on the fateful day he was on patrolling duty with ASI Pyar Ali when they heard cries of 'Pakro, Pakro' and on such cries, he and ASI Pyar Ali attracted towards the place of the incident and saw that one boy having churri/knife was telling that he killed the deceased. This witness further says that he got some information which was communicated to him that the accused has killed the deceased due to some enmity. This witness approached after the incident and he says that the accused has shown him some old injury marks and informed him that he had himself received injuries by the hand of the deceased. From the deposition of this witness, it becomes evident that at least the alleged eyewitness ASI Pyar Ali has not seen the incident as he along with HC Irshad heard the cries of ‘pakro, pakro’ and then they approach to the place of incident. From this fact, it appears that when both the police officials came to the scene of offence, the incident has already taken place.

8. The other important eyewitnesses are two brothers, who used to sell ‘Dal and Chawal’ at the place of incident. According to PW Sabir Hussein, at the date and time of the incident he was available at his stall of daal-chawal and saw that the accused took out a small size churri and hit the same directly on the chest of deceased. During cross, he said that after the incident, two constables came at the place of incident and took the accused with them. This witness does not say that after the incident, accused has said that he had killed the deceased. This witness further says that on the next day, he was called by police at police station where his statement under Section 161 was recorded. From this fact, it appears that this witness has not volunteered himself to become a witness but he was called and asked by the police to become witness. Being a hawker, his evidence is not trustworthy because he remains under obligation of police for putting his stall for selling daal-chawal. The other witness of the prosecution is Rajab Ali, who is the brother of PW Sabir Hussain, who claimed that he was also available on his stall of daal-chawal and at the time of incident he was distributing daal-chawal to customers. This witness has described altogether a different story. According to him, in his presence the appellant and the deceased came there and started to abuse each other and also beaten each other. It is worth noting that his brother Sabir did not say anything about abusing and beating in his deposition. This witness further says that the appellant and deceased both were under intoxication but nothing about intoxication was said by the other witnesses. This witness says that after the incident the accused tried to run away but he was apprehended by the police. However, HC Irshad and another prosecution witness Qaiser Khan says that the accused was apprehended by the public and the public has handed over him to police. From the deposition of PW Rajab Ali, it becomes evident that the police arrived at the scene of the incident not at the time of incident but afterward. Meaning thereby that the deposition of ASI Pyar Ali that he had seen the appellant causing injury to the deceased is not correct. It is also worth mentioning that PW Rajab Ali says that the distance of his stall and the place of the incident is 100 yards while his brother Sabir says it was only 15 paces away. When this aspect of both the witnesses is viewed in the background of the ‘Memo of Place of the Incident’, an astonishing thing is observed that neither in the ‘Memo of Place of Incident’ nor the ‘Sketch of Place of Incident’, any stall of daal-chawal is shown.

9. As I have discussed earlier that if the appellant was caught hold by the public then at least some member of public, who apprehended the appellant should be examined by the prosecution. The prosecution did not make any of such person as witness nor any reason for the same is given. Although one private person namely Qaiser Khan is examined who disclosed his occupation as 'Social Worker' but whatever he has stated before the trial Court is nothing but hearsay evidence. This witness has stated that he had made call to 15, thereafter police reached at the place of incident. The entire record is silent about any information to 15 police and none of the official witness has disclosed that the police reached at the spot due to a call made to police on ‘police emergency help’ phone number-15.

10. As far as confession of the appellant before police is concerned, the same is inadmissible. Besides, for a juvenile, it is not difficult to get confession as due to tender age, juveniles are vulnerable to such confession, since they do not have the capacity to realize the effect of their statements recorded by police or even before magistrate. In present case, it is an extra judicial confession, while I am of the view that even a judicial confession is not sufficient to cast an adverse view about a juvenile, who comes in conflict with the law.

11. In view of the above discussion, I am confident to say that the prosecution case is not free from doubt, as such after extending the benefit of doubt to the appellant, (who was juvenile at the time of incident) he is acquitted from charge and directed to be released forthwith if not required in any other custody case through a short order dated 24-09-2018 and these are the reasons for the same

J U D G E