IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 490 of 2019

Appellant: Shaikh Hamd @ Hamad through Syed Lal Hussain Shah advocate

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

Complainant: Inayatullah Khaskheli through Mr. Haq Nawaz Talpur advocate

Date of hearing: 16.11.2022

Date of judgment: 16.11.2022

J U D G M E N T

IRSHAD ALI SHAH, J-. It is the case of prosecution that the deceased Dr. Saleem Ahmed, his wife and complainant Inayatullah were going to attend marriage ceremony when reached at Submarine Chowrangi Clifton, were confronted by unknown culprit, who caused fire shot injuries to the deceased and then made his escape good, for that the present case was registered. On investigation, the appellant was apprehended, was subjected to identification parade through the complainant and PW Mumtaz, from him was secured the pistol of 30 bore which he allegedly used in commission of incident and then was challaned; he denied the charge and prosecution to prove it, examined complainant Inayatullah and his witnesses and then closed its side. The appellant in his statement recorded u/s 342 Cr.P.C denied the prosecution’s allegations by pleading innocence by stating that his arrest was shown by the police when his mother Mrs. Shaheen Habib filed a habeas corpus petition before this Court. He however, examined none in his defence or himself on oath. On conclusion of trial, the appellant was convicted u/s 302(b) PPC r/w section 397 PPC and sentenced to undergo life imprisonment and to pay compensation of Rs.300,000/- to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for 06 months with benefit of section 382(b) Cr.P.C by learned Ist Additional Sessions Judge/MCTC Karachi South vide judgment dated 31.07.2019, 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; FIR has been lodged with delay of about 01 day and it is against unknown culprit; no postmortem on the dead body of the deceased has been conducted; the identification parade of the appellant has been conducted on 13^th day of his arrest, it is defective one; pistol has been foisted upon the appellant and evidence of the P.Ws being doubtful in its character has been believed by learned trial Court without assigning cogent reasons, therefore, the appellant is entitled to his acquittal by extending him benefit of doubt.

3. It is contended by learned Addl. P.G for the state and learned counsel for the complainant that the delay in lodgment of the FIR was natural; the appellant has been picked up in identification parade by the complainant and P.W Mumtaz as real culprit of the incident; recovery of the pistol has been made at his own instance which has been found matched with one of the empty secured from the place of incident and there is no defect in identification parade and evidence of the P.Ws has rightly been believed by learned trial Court. By contending so, they sought for dismissal of the instant appeal.

4. Heard arguments and perused the record.

5. Admittedly, the FIR is lodged with delay of 01 day and it is against unknown culprit. It is stated by the complainant that on 30.12.2011, he, Dr. Saleem Ahmed and his wife were going to attend marriage ceremony through car, when reached at Submarine Chowrangi, Clifton, they were confronted by a person, who fired at Dr. Saleem Ahmed and then made his escape good. Dr. Saleem Ahmed was taken to Jinnah Hospital in injured condition, there he died of such injuries and he then reported the incident formally to the police it was recorded in shape of his Section 154 Cr.P.C statement by ASI Imtiaz Ahmed. Admittedly, the very case at one moment was disposed of by police under A-Class. Subsequently, as per I.O/Inspector Muhammad Afzal Baig on 22.04.2015, it was intimated to him that SIP Waryam Khan of P.S Baloch Colony has apprehended the appellant and has confessed his guilt before him. If for the sake of arguments, it is believed that such confession was actually made by the appellant, even then same being inadmissible in evidence in terms of Article 39 of Qanun-e-Shahadat Order, 1984 could not be used against him. Surprisingly, SIP Waryam Khan has not been examined by the prosecution, for no obvious reason. His non-examination could not be overlooked. It was further stated by said I.O/Inspector that on such information, he arrested the appellant in the present case formally on 23.04.2015 and then subjected him to identification formally on 05.05.2015 through the complainant and P.W Mumtaz, which was conducted by Mr. Hatim Aziz Solangi, the Magistrate having jurisdiction. Surprisingly, name of the person who identified by the complainant and P.W Mumtaz is shown in memo of identification to be Nadeem alias Grenade son of Abdul Mateen. When asked how it happened? It was stated by Mr. Hatim Aziz Solangi that it was mistake. It could hardly be treated to be a mistake, as person with name of Nadeem alias Grenade son of Abdul Mateen was also apprehended by said I.O/Inspector but was let off by him subsequently declaring him to be innocent. When asked for who arranged for the dummies? It was stated by Mr. Hatim Aziz Solangi that those were arranged by his staff. Contrary to him, it was stated by said I.O/Inspector that those were arranged by him and some of the dummies were police personnel. Such inconsistency could not be overlooked, it smells of doubt at least with regard to the manner whereby the identification parade was conducted. P.W Mumtaz who allegedly has identified the appellant during course of identification parade has not been examined by the prosecution. The inference, which could be drawn of his non-examination u/A 129(g) of the Qanun-e-Shahadat Order, 1984, would be that he was not going to support the case of prosecution. The 30 bore pistol without number is alleged to have been secured from the appellant significantly it was with delay of more than 03 years to the incident, such pistol on forensic examination was found to be with its number rubbed. There is line of demarcation between pistol with its number rubbed and pistol without its number; it obviously has made the very recovery of such pistol from the appellant to be doubtful. As per the complainant from place of incident were secured 05 empties of 9 mm bore. If it was so, then here arises a question as to from where the empty of 30 bore was secured? It is mystery. Whatever the case property, the prosecution was having has not been produced at trial, for the reason that it was burnt on account of fire in malkhana. No road certificate is produced, which may suggest that the property of the present case was actually kept in malkhana and it was burnt there. Wife of the deceased, who allegedly was with him at the time of incident, has not been examined by the prosecution, for no obvious reason. Her non-examination could not be ignored. The car which the deceased was driving at the time of incident has not been produced at trial. 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 incident beyond reasonable shadow of doubt.

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

“Delay of seven days in holding the identification parade after the arrest of accused had made the same doubtful”.

7. 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".

8. 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 and convicted by learned trial Court and he shall be released forthwith, if is not required to be detained in any other custody case.

9. The instant appeal is disposed of accordingly.

JUDGE