IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 10 of 2020

  

                                                       

Appellant:                    Muhammad Yaseen through Mr. Muhammad Hanif Noonari advocate

 

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

 

Date of hearing:           29.11.2022

 

Date of judgment:        29.11.2022

 

 

J U D G M E N T

 

IRSHAD ALI SHAH, J- It is alleged that the appellant with one more culprit committed murder of Shahrukh by causing him fire shot injuries, for that he was booked and reported upon. On conclusion of trial, he was convicted under Section 302(b) PPC and sentenced to undergo imprisonment for life 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 I-Additional Sessions Judge/MCTC, Karachi South, vide judgment dated 25.09.2019, which is impugned by the appellant before this Court by preferring the instant jail 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 on the basis of defective identification parade and evidence of the P.Ws being doubtful in nature has been believed by learned trial Court without assigning cogent reasons. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt.

3.       None has come forward 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 appellant has also confessed his guilt before police.

4.       Heard arguments and perused the record.

5.       Name and description of the appellant are not disclosed in the FIR, though it is lodged with delay of about 02 days. Complainant Muhammad Ali is not an eye witness to the incident, therefore, his evidence hardly lends support to the case of prosecution. On 02.06.2013, the appellant was apprehended by I.O/SIP Liaquat Ali and during course of inquiry, as per P.W SIP Subhan Ali Channa, he confessed before I/O SIP Liaquat Ali to have committed the alleged incident. If for the sake of arguments, it is believed that the appellant has actually made such confession before I.O/SIP Liaquat Ali, even then, same being inadmissible in evidence in terms of Article 39 of Qanun-e-Shahadat Order, 1984 could not be used against him. As per I.O / SIP Sher Muhammad the appellant then was taken into custody by him in present case and then was produced on 10.06.2013 before Mr. Inayatullah Bhutto Magistrate having jurisdiction for conducting his identification parade through P.W Safdar Masih, who as per prosecution has seen the appellant at the time of incident; it was adjourned to 11.06.2013. By such act, a chance obviously was provided to P.W Safdar Masih to have glimpse of the appellant. It was stated by P.W Safdar Masih that he identified the appellant during course of identification parade to be person responsible for the alleged incident. On asking he however was fair enough to admit that the hullia of the accused was not disclosed by him before police in his 161 Cr.P.C statement. If it was so, then identity of the appellant through P.W Safdar Masih before the Magistrate is appearing to be doubtful. Even otherwise, the identification parade of the appellant has been conducted on 9th day of his arrest and for such delay no reasonable explanation is offered by the prosecution, therefore, such identification parade could reasonably be judged with doubt. I.O/SIP Liaquat Ali who has conducted much of the investigation of the present case and Medical Officer Dr. Nisar Ali Shah who has conducted postmortem on the death body of the deceased have not been examined by the prosecution, for the reason that they have retired from service. Retirement of an employee could hardly be a reason for their non-examination. In that way, the appellant obviously has been prejudiced in his defence seriously. As per IO/SIP Sher Muhammad nothing has been recovered from the appellant. 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.

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 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 the facts and reasons discussed above, the conviction and sentence awarded to the appellant by way of impugned judgment 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.

9.       The instant jail appeal is disposed of accordingly.

 

JUDGE