IN THE HIGH COURT OF SINDH, AT KARACHI

 

Criminal Appeal No. 29 of 2021

Criminal Jail Appeal No. 135 of 2021

                                                       

 

Appellant(s):                Aurangzeb alias Zeb through Mr. Nasrullah Malik advocate

 

                                      Muhammad Asif @ Heep through Mr. Malik Waseem Hussain Awan advocate

N

The State:                      Ms. Rubina Qadir, Deputy Prosecutor General Sindh

 

Date of hearing:           31.10.2022

 

Date of judgment:        31.10.2022

 

 

J U D G M E N T

 

IRSHAD ALI SHAH, J- It is alleged that the appellants in furtherance of their common intention, committed murder of Raheel by causing him fire shot injury on his head, for that they were booked and reported upon. On conclusion of trial, they were convicted under Section 302(b) PPC r/w 34 PPC and sentenced to undergo imprisonment for life as Tazir and to pay compensation of Rs.500,000/- each to the legal heirs of the deceased with benefit of section 382-B Cr.P.C by learned V-Additional Sessions Judge, Karachi East by judgment dated 18.11.2020, which is impugned by the appellants before this Court by preferring two separate appeals one from jail and other through counsel.

2.       It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the police at the instance of the complainant party; no identification parade of appellant Muhammad Asif alias Heep has been conducted; the identification parade of appellant Aurangzeb alias Zeb being defective, has been relied upon, without lawful justification and evidence of the P.Ws being doubtful in its character has been believed by learned trial Court without assigning cogent reasons, therefore, the appellants are entitled to their acquittal by extending them benefit of doubt.

3.       None has come forward to advance arguments on behalf of the complainant. However, learned D.P.G for the state by supporting the impugned judgment has sought for dismissal of instant appeals by contending that the appellants have rightly been convicted and sentenced by learned trial Court with cogent reasons.

4.       Heard arguments and perused the record.

5.       The names and descriptions of the appellants are not appearing in the FIR, though it is lodged on 3rd day of the incident, which appears to be significant. It was stated by complainant Khalil Ahmed that on the date of incident, he P.Ws Muhammad Fazil, Mujeeb Khan and deceased Raheel went at workshop at Darul Salam Society for repair of their car. In the meanwhile, there came two persons on a motorcycle, one by holding the deceased from hairs of his head and then fired at him, who by sustaining such fire shot injury on his head fell down, those persons then drove away on their motorcycle; the deceased was taken to Jinnah Hospital and he then reported the incident to police. On 16.07.2015, appellant Aurangzeb alias Zeb was arrested by police party of PS Mehmoodabad together with the pistol allegedly used by him in commission of the present incident. He then formally was arrested in present case by I.O/SIP Naimat Ali and, during course of interrogation, as per P.W/mashir Muhammad Qabil, he confessed his guilt before him and I.O/SIP Naimat Ali. If for the sake of arguments, it is believed that appellant Aurangzeb alias Zeb has actually confessed his guilt before I.O/SIP Naimat Ali, by making such statement, even then same could not be used against him being inadmissible in evidence in terms of Article 39 of the Qanun-e-Shahadat Order, 1984. On 27.07.2015, appellant Aurangzeb alias Zeb was subjected to identification parade through the complainant and P.W Mujeeb Khan, which was conducted by Mr. Waheed Ali, the Magistrate having jurisdiction, whereby he was identified by the complainant and P.W Mujeeb Khan to be the culprit responsible for causing death of the deceased. It was conducted with delay of about 10 days to his actual.  No explanation to such delay is offered by the prosecution which smells of foul play. Neither P.W Mujeeb Khan nor any mashir to identification memo has been examined by the prosecution. Inference which could be drawn of their non-examination under Article 129(g) of the Qanun-e-Shahadat Order, 1984, would be that they were not going to support the case of the prosecution. In that situation, the identification parade of the appellant could hardly be relied upon to maintain conviction. P.W Fazil too has not been examined by the prosecution for no obvious reason. His non-examination could not be overlooked. On forensic examination, the pistol allegedly secured from the appellant Aurangzeb alias Zeb was not found matched with the empty secured from the place of incident, therefore, he could hardly be connected with such recovery. Nothing has been brought on record which may suggest that who actually provided photos of CCTV recording to I.O/SIP Naimat Ali. Even otherwise, there is nothing in those CCTV photos, which may suggest that it was any of the appellant who actually fired at the deceased. The owner of the workshop where the incident allegedly took place has not been examined by the prosecution. The involvement of appellant Muhammad Asif alias Heep in commission of the incident is based only for the reason that he was with appellant Aurangzeb alias Zeb at the time of incident and provided the pistol to him to be used in commission of incident, which itself being weak piece of evidence could hardly connect him too with the commission of incident. I.O/SIP Naimat Ali, who conducted almost entire investigation of the case could not be examined by the prosecution on account of his death. In that way the appellants were deprived in their defence seriously. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove its case against the appellants beyond shadow of doubt and their pleas of innocence could not be lost sight of.

6.       In the case of Shafqat Mehmood and others vs. The State                              (2011 SCMR 537), the Hon’ble Apex Court has held that;

“……Identification parade was held after a delay of 7 days after the arrest of the accused. This delay creates a lot of doubt regarding the identification parade as the witnesses had various opportunities to see the accused persons…”

 

7.       In the 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".

 

8.       In view of above, the conviction and sentence awarded to the appellants by way of impugned judgment are set-aside, consequently, they are acquitted of the offence for which they were charged, tried, convicted and sentenced by learned trial Court and they shall be released forthwith, if are not required to be detained in any other custody case.

9.       The instant appeals are disposed of accordingly.

                      JUDGE