IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 448 of 2020

 

Appellant:                            Mohsin-ur-Rehman through Mr. Salman Mujahid Baloch  advocate

 

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

 

Date of hearing:                  08.11.2022

 

Date of Judgment:              08.11.2022

 

J U D G M E N T

 

IRSHAD ALI SHAH, J.- It is alleged that the appellant with rest of the culprits in furtherance of their common intention committed murder of Azfar by causing him fire shot injuries when he was sitting at his milk shop, for that the present case was registered. On investigation, the appellant, co-accused Salman and Badaruddin were challaned to face trial for the said offence, they denied the charge and prosecution to prove it, examined complainant Babar Khan and his witnesses and then closed its side. The appellant and said co-accused during course of their examination under Section 342 Cr.P.C denied the prosecution’s allegations by pleading innocence by stating that they were taken by Rangers personnel and then their arrest was shown by the police on filing of writ petitions before this Court, by their relatives. On conclusion of trial, co-accused Salman and Badaruddin were acquitted while the appellant was convicted u/s 302(b) PPC and sentenced to undergo life imprisonment and to pay compensation of Rs.500,000/- to the legal heirs of said deceased and in default whereof to undergo simple imprisonment for 06 months with benefit of section 382(b) Cr.P.C by learned 1st Additional Sessions Judge/ MCTC, Karachi South vide judgment dated 21.09.2020, 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; his name and description are not appearing in the FIR though it is lodged with delay of about 03 days; his identity through the identification parade is doubtful; there is no recovery of any sort from him and on the basis of same evidence co-accused Salman and Badaruddin has been acquitted, therefore, he is also entitled to his acquittal by extending him benefit of doubt.

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

4.       Heard arguments and perused the record.

5.       The incident is alleged to have taken place on 22.03.2015, the FIR whereof has been lodged by the complainant on 25.03.2015, with delay of about 03 days, without disclosing the names and descriptions of the culprits involved therein or even by the P.Ws in their in 161 Cr.P.C statements, which appears to be surprising. The very case at one moment as per I.O/SIP Imamuddin was disposed of under A-Class. As per I.O/SIP Muhammad Irshad Khan, on 17.08.2015, he arrested the appellant and others, on inquiry they disclosed before him to have committed the alleged incident. If for the sake of arguments, it is believed that such disclosure was actually made by the appellant and others; even then same being inadmissible in terms of Article 39 of Qanun-e-Shahadat Order, 1984 could not be used as evidence. It was further stated by I.O/SIP Muhammad Irshad Khan that on 19.08.2015, he made a formal request before Magistrate having jurisdiction for conducting identification parade of the appellant and others through P.W Nadir Khan; such request as per Mr. Javed Iqbal Malik was actually made on 18.05.2015, the identification proceedings were postponed to be conducted on 20.08.2015; on such date, the appellant and others were not produced before him, therefore, the identification proceedings were again postponed to be conducted on 22.08.2015. It was on 5th day of the arrest of the appellant and others. By that act, a chance apparently was provided to P.W Nadir Khan to have glimpse of the appellant at least. On 22.08.2015, as per P.W Nadir Khan he identified the appellant to be responsible for committing death of the deceased by causing him fire shot injuries. In such identification proceedings, he however, failed to identify co-accused Salman and Badaruddin. As per him most of the dummies in identification proceedings were found to be handcuffed and were appearing to be prisoners, excepting three who were produced with their faces muffled. The identification proceedings of the appellant and others by mixing them with the prisoners with their hands cuffed could reasonably be judged with doubt. The identification memo was attested by Waseem Ahmed and Muhammad Tahir as mashirs. None amongst them is examined by the prosecution. Probably, in order to strengthen the case, Mst. Fiza Sharif was introduced in investigation by I.O/SIP Nusrat Hussain Shah, it was stated by her that the deceased was her maternal cousin and he shown to her, her photo with the appellant and then threatened her to show the same to her parents, she related such fact to the appellant, who obtained address of the deceased and then incident took place. On asking she was fair enough to say that her 161 Cr.P.C statement was recorded by police on 03.09.2015, it was with delay of more than 05 months to the incident and 11 days to the identification proceedings of the appellant and others. The undue and unexplained delay in recording 161 Cr.P.C of P.W Mst. Fiza Sharif could not be ignored. Apparently, the evidence of the complainant and P.W Qadir Khan is hardly lending support to the case of prosecution for the reason that they admittedly are not eye witnesses to the incident. There is no recovery of any sort from the appellant. Whatever the case property the prosecution was having has not been produced at trial, for the reason that it has been burnt on account of fire at Malkhana. Nothing has been brought on record which may suggest that the case property of this case was actually kept in Malkhana and it was burnt there. In CCTV photos of the vicinity of the place of incident as per I.O/SIP Nusrat Hussain Shah, the persons shown are not identifiable, therefore such photos too are not lending any support to the case of prosecuton. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt and he too is found entitled to such benefit.

6.       In the case of Imran Ashraf and others vs. the State                     (2001 SCMR 424), it was observed by Hon’ble Court that;

“Section 154, Cr.P.C. lays down procedure for registration of an information in cognizable cases and it also indeed gives mandatory direction for registration of the case as per the procedure. Therefore, police enjoys no jurisdiction to cause delay in registration of the case and under the law is bound to act accordingly enabling the machinery of law to come into play as soon as it is possible and if first information report is registered without any delay it can help the investigating agency in completing the process of investigation expeditiously”.

 

7.       In case of Abdul Khaliq vs. the State (1996 SCMR 1553), it has been held by Hon’ble apex Court that;

“……It is a settled position of law that late recording of 161, Cr.P.C. statement of a prosecution witness reduces its value to nil unless there is plausible explanation for such delay.”

 

8.       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…”

 

9.       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”.

 

10.     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".

 

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

12.     Instant appeal is disposed of accordingly.           

JUDGE