IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 76 of 2015

Appellant: Mst. Ayesha Nazim through Mr. Mamoon A.K Sherwany advocate

The State: Through Mr. Faheem Hussain Panhwar, Deputy Prosecutor General Sindh

Date of hearing: 25.08.2022

Date of judgment: 25.08.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant with the rest of the culprits in furtherance of their common intention committed death of PC Fida Hussain by causing him fire shot injuries in their car and then fled away for that the present case was registered. After due trial, the appellant was convicted under Section 302(b) PPC and sentenced to undergo rigorous imprisonment for life and to pay compensation of Rs.100,000/- to the legal heirs of the deceased by learned IV-Additional Sessions Judge, Karachi vide judgment dated 24.02.2015, which is impugned by the appellant before this Court by preferring the instant appeal.

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 and she has been convicted and sentenced by learned trial Court virtually on the basis of no evidence, therefore, she is liable to be acquitted by extending benefit of doubt to her.

3. Learned DPG for the state by supporting the impugned judgment has sought for dismissal of the instant appeal by contending that the car used in the commission of incident was hired by the appellant.

4. Heard arguments and perused record.

5. It is stated by complainant PC Muhammad Qasim that on the date of incident he and the deceased were posted at PS Model Colony, which they left through motorcycle for patrolling. No roznamcha entry is produced by him, which may indicate that he and deceased left the said police station on the date of incident for patrolling, which has made his version with regard to the alleged patrolling to be doubtful. It was further stated by him that when they reached adjacent to Sindhi School Model Colony Karachi, there they found coming one Alto Car, it was made to stop therein were found sitting two boys and one girl. On inquiry, one boy disclosed his name to be Kami, on search from him was secured a pistol of 9 mm. bore with six bullets. The other boy and girl were also searched upon. No memo with regard to that search is produced by the complainant, which has made the allegation of search to be doubtful. It was further stated by the complainant that he made PC Fida Hussain to sit in the said car and then asked him and others to proceed towards PS Model Colony while he followed them on his motorcycle. In the meanwhile, he heard a fire shot report from car and then it accelerated and gone missing. If for the sake of arguments, it is believed that the complainant heard the fire shot report even then there is nothing in his evidence which may suggest that who actually fired at the deceased. The incident as per the complainant was reported. On investigation, as per SIO/SIP Choudhry Muhammad Ilyas, the car was secured and dead body of the deceased was found lying therein. It was found to be registered in name of Rashid Ali, who on inquiry disclosed that it was rented out by his employee Javed. It is stated by P.W Javed that it was hired by the appellant and she then intimated to him on cell phone that it has been snatched. Nothing in shape of CDR etc. is produced which may actually indicate that the appellant actually intimated P.W Javed with regard to snatching of car from her. However, in order to prove the fact that the car was actually hired by the appellant, the prosecution has brought on record a “rent a car” slip. It indicates that it was hired by Shabana. The appellant has claimed to be Ayesha. In that situation, it was obligatory upon the prosecution to have subjected the appellant to identification parade through a Magistrate. It has not been done. The identity of the appellant by the complainant or PW Javed before police could reasonably be judged with doubt. In these circumstances, it could be concluded safely that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt and to such benefit she is found entitled.

6. In case of Muhammad Mansha vs 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".

7. In view of above, the conviction and sentence awarded to the appellants by way of impugned judgment are set aside, consequently, she is acquitted of the offence, for which she was charged, tried and convicted by learned trial Court. She is present in Court on bail, her bail is cancelled and surety is discharged.

8. The instant appeal is disposed of accordingly.

JUDGE