IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 121 of 2021

Appellant: Mushtaq Ahmed through Mr. Muhammad Khan Sheikh advocate

The State: Mr. Khadim Hussain, Additional Prosecutor General Sindh

Date of hearing: 03.11.2022

Date of judgment: 03.11.2022

J U D G M E N T

IRSHAD ALI SHAH, J- The facts in brief necessary for disposal of the instant appeal are that the appellant and others allegedly in furtherance of their common intention committed death of Zulfiqar by causing him injuries with fire shot and sharp cutting weapon, for that the present case was registered. On investigation, the appellant, co-accused Pervaiz alias Fouji and Naseer were challaned, they did not plead guilty to the charge and prosecution to prove it, examined complainant Mst. Saima and her witnesses and then closed its side. The appellant and the said co-accused during course of their examination under Section 342 Cr.P.C denied the prosecution’s allegation by pleading innocence. On conclusion of trial, learned Xth-Additional Sessions Judge, Karachi South acquitted co-accused Pervaiz alias Fouji and Naseer, while convicted the appellant u/s 302(b) PPC and sentenced him to undergo life imprisonment with fine of Rs.500,000/- payable to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for 06 months vide judgment 28.01.2021, 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 at the instance of the complainant and on the basis of same evidence, co-accused Pervaiz alias Fouji and Naseer have been acquitted by learned trial Court. By contending so, he sought for acquittal of the appellant.

3. None has appeared to advance arguments on behalf of the complainant. However, learned Addl. P.G for the State by supporting the impugned judgment has sought for dismissal of instant appeal by contending that the case of the appellant is distinguishable to that of the acquitted accused and prosecution has been able to prove its case against him beyond shadow of doubt.

4. Heard arguments and perused the record.

5. Admittedly, the FIR of the incident was lodged on 14.04.2017 against unknown culprits to be of 20 and 24 years of the age; the appellant is said to be of 42 years of the age; the complainant was 3^rd wife of the deceased and before her marriage with the deceased, she was serving as the clinic of the deceased as Nurse and the deceased too was a dispenser and the very case at one per moment was disposed of by the police under A-class. As per I.O/SIP Rao Muhammad Anwar, the appellant and co-accused were apprehended by police party of P.S Al-Falah led by ASI Raja Jamshed and from them were secured unlicensed pistols, on coming to know of such fact, he went at P.S Al-Falah and on inquiry the appellant and others disclosed before him that they have committed murder of the deceased. If for the sake of arguments, it is believed that such disclosure was made by the appellant and others, even then same being inadmissible in terms of Article 39 of the Qanun-e-Shahadat Order, 1984 could not be used as evidence. It was further stated by him that after such disclosure, the appellant and others were taken into custody by him in present case formally on 19.09.2018 and then they were subjected to identification parade through the complainant and P.W Amir Ali. Such identification parade was conducted by Mr. Shafqat Hussain Solangi, the Magistrate having jurisdiction on 25.09.2018; it was on 5^th day of arrest of the appellant and acquitted accused Parvaiz alias Fouji. It is stated by Mr. Shafqat Hussain Solangi, the Magistrate having jurisdiction that during course of identification parade, P.W Amir Ali could not identify the appellant while the complainant identified the appellant and co-accused Pervaiz alias Fouji to be responsible for committing murder of her husband; the specific role of causing fire shot injury to the deceased as per him was assigned by the complainant to the appellant. Evidence of the complainant is silent with regard to conduct of identification parade which appears to be surprising. In that situation the appellant could hardly be connected with the commission of incident, on the basis of identification parade. It was stated by I.O/SIP Hameedullah that during course of investigation, he recorded 161 Cr.P.C statements of P.Ws Maqbool Ahmed and Abdul Haq, who happened to be cousins of the deceased, whereby they stated that they are suspecting the complainant to be responsible for death of the deceased. Surprisingly, they had not been examined by the prosecution, perhaps knowingly. The pistol allegedly secured from the appellant, as per report of forensic examination was not found matched with the empty secured from the place of incident, which goes to suggest that the pistol secured from the appellant was not used by him in commission of the present incident. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove the involvement of the appellant in commission of the incident beyond shadow of doubt and to such benefit, he too is found entitled.

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 case of Sardar Bibi and others vs. Munir Ahmed and others (2017 SCMR 344), it has been held by the Hon’ble Apex Court that;

“When the eye-witnesses produced by the prosecution were disbelieved to the extent of one accused person attributed effective role, then the said eye-witnesses could not be relied upon for the purpose of convicting another accused person attributed a similar role without availability of independent corroboration to the extent of such other accused”.

8. 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".

9. In view of the facts and reasons discussed above, the conviction and sentence awarded to the appellant are set aside, consequently, he is acquitted of the offence with which he was charged, tried, convicted and sentenced by learned trial Court; he shall be released forthwith if not required to be detained in any other custody case.

10. The instant appeal is disposed of accordingly.

JUDGE