IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 274 of 2020

Appellants: Ghulam Mustafa @ Bablo, Waqas @ Waqar @ Panga, Nadeem and Saleem @ Romeo through Mr. Matloob Hussain Qureshi and Ms. Kainat Hassan advocates

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

Date of hearing: 08.12.2022

Date of judgment: 08.12.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellants during course of robbery committed death of Syed Umer Shah by causing him fire shot injuries, for that they were booked and reported. On conclusion of trial, they were convicted under Section 302(b)/34 PPC and sentenced to undergo rigorous imprisonment for life as tazir and to pay compensation of Rs.500,000/- each to the legal heirs of the deceased; they were further convicted u/s 397/34 PPC and were sentenced to undergo rigorous imprisonment for 07 years; all the sentences were ordered to run concurrently with benefit of section 382(b) Cr.P.C by learned Vth-Additional Sessions Judge Karachi East vide judgment dated 07.03.2020, which is impugned by the appellants before this Court by preferring the instant appeal from jail.

2. It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the police at the instance of the complainant party, FIR of the incident has been lodged with the delay of about 01 day, it does not contain names and descriptions of the appellants, the identification parade of the appellants is defective one and they have been convicted and sentenced on the basis of misappraisal of evidence. By contending so, he sought for acquittal of the appellants by extending them 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 have sought for dismissal of instant jail appeal by contending that on arrest from one of the appellant has been secured cell phone of the deceased and prosecution has been able to prove its case against the appellants beyond shadow of doubt.

4. Heard arguments and perused the record.

5. Admittedly, the FIR of the incident has been lodged with delay of about 01 day and it does not contain names and descriptions of the culprits involved in the incident. It was stated by complainant Syed Fahad Shah that on 07.06.2017 at about 0318 hours, he was intimated by P.W Zaid through cell phone that the deceased who was his brother has been done to death by someone during course of robbery inside of ATM machine Allied Bank Gulshan-e-Iqbal, Karachi. On such information, he, P.Ws Arsalan and Muhammad Nauman went at the place of incident, there they were intimated that dead body of the deceased has been taken to Abbasi Shaheed Hospital through Chipa Ambulance, then they went at Abbasi Shaheed Hospital, there came I.O/SIP Muhammad Akram, who after observing usual formalities, handed over the dead body of the deceased to him and he then lodged report of the incident on 08.06.2017 with P.S Gulshan-e-Iqbal. Evidence of P.W Muhammad Nauman is only to the extent that he accompanied the complainant to the place of incident and then to hospital. They apparently are not eye witnesses to the incident, therefore, their evidence could hardly lend support to the case of prosecution. It was further stated by the complainant that on investigation, he was called by I.O/SIP Shah Nawaz, who told him that appellant Ghulam Mustafa @ Bublo has been apprehended and on inquiry had disclosed to have committed the present incident. It was stated by I.O/SIP Shah Nawaz that he then apprehended appellants Saleem @ Romio, Waqas @ Waqar @ Panga and Nadeem one after other and they during course of inquiry also disclosed before him to have committed the present incident. If for the sake of arguments, it is believed that they actually disclosed before the said I.O/SIP to have committed the present incident even then such disclosure being inadmissible in terms of Article 39 of Qanun-e-Shahadat Order, 1984 could not be used against them as evidence. It was further stated by the said I.O/SIP that the appellants one after other were subjected to identification parades, which were conducted by M/s Nalay Mitho @ Muhammad Ishaq, Waheed Ahmed and Ayaz Ahmed, the Magistrates having jurisdiction, whereby they were identified by P.W Muhammad Ismail to be culprits responsible for the above said incident. P.W Muhammad Ismail is said to be a person who has seen the appellants while committing the said incident. On asking it was stated by him that his 161 Cr.P.C statement was recorded by I.O/SIP Shah Nawaz on 10.06.2017, it was on 3^rd day to the incident. No explanation to such delay is offered by the prosecution, which prima facie suggests that he was introduced in investigation subsequently by the said I.O/SIP obviously with some ulterior motives. Even otherwise, it would be hard for any stranger to identify the unknown culprits properly that too at odd hours of night, therefore, his evidence being that of managed witness could hardly be relied upon. P.W Zaid, who as per the complainant actually intimated him about the incident through cell phone with its cell number, being natural witness to the incident has not been examined by the prosecution. His non-examination could not be overlooked. No reliance could be placed on CCTV photographs of the place of incident for the reason that those have not been subjected to forensic examination. Nothing has been brought on record which may suggest that it was the cell phone of the deceased which actually was secured from appellant Ghulam Mustafa @ Bablo. Even otherwise, the case property of present case, has not been produced at trial by the prosecution, for the reason that, it was burnt on account of fire in malkhana. No road certificate is brought on record which may suggest that case property of the present case was actually kept in malkhana and it burnt there. In these circumstances, it would be safe to conclude that the prosecution has not able to prove the involvement of the appellants in commission of the offence beyond reasonable doubt.

6. In the case of Mian Sohail Ahmed and others vs. The State and others (2019 SCMR 956), it has been held by the Hon’ble Apex Court that:

“The witness was fired at first and then the deceased was shot dead, we notice that factors like weapon focus and distance and lighting are visible in this case. The duration of the event has not been specified in the crime report. In this background, it cannot be said with certainty that the visual recognition of the appellants by the complainant on the fateful night was unhindered and unhampered especially when he was fired at first and allegedly saw the occurrence under stress of a threat. Based on the above "estimator variables," possibility of misidentification cannot be ruled out, thereby making it unsafe to place reliance on the identification evidence.”

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 appellants by way of impugned judgment are set aside, consequently, they are acquitted of the offence with which they were charged, tried, convicted and sentenced by learned trial Court; they 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