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