IN THE HIGH COURT
OF SINDH AT KARACHI
Criminal Jail Appeal No. 140 of 2020
Criminal Jail Appeal No. 55 of 2020
Appellants: Faisal and Azhar @ Radhay through Mr.
Qaim Ali Memon advocate
Respondent:
The State through Mr. Khadim Hussian, Additional Prosecutor
General Sindh
Date of hearing: 12.12.2022
Date of Judgment: 12.12.2022
J U D G M E N T
IRSHAD
ALI SHAH, J.- It is alleged that
the appellants during course of robbery of cell phone, caused fires shot
injuries to Chowdhry Tanveer Ahmed, who eventually died of such injuries at Jinnah
Hospital, for that they were booked and reported upon. On conclusion of trial,
the appellants were convicted u/s 302(b)/34 PPC and sentenced to undergo life imprisonment
and to pay compensation of Rs.300,000/- each to the legal heirs of the deceased
and in default whereof to undergo simple imprisonment for 06 months; they were
further convicted u/s 397/34 PPC and sentenced to undergo rigorous imprisonment
for 07 years and to pay fine of Rs.50,000/- each and in default whereof to
undergo simple imprisonment for 03 months; all the sentences were ordered to
run concurrently with benefit of section 382(b) Cr.P.C by learned I-Additional
Sessions Judge/ MCTC Karachi South, vide judgment dated 20.12.2019, which is
impugned by the appellants before this Court by preferring two separate appeals
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 and they have been convicted and sentenced by learned trial
Court 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 has sought for dismissal of instant appeals
by contending that the prosecution has been able to prove its case against the
appellant beyond shadow of doubt.
4. Heard arguments and perused the record.
5. It was stated by complainant Umair Ahmed Chowdhry
that 09.01.2015, it was intimated to him by his younger brother that his father
Chowdhry Tanveer Ahmed and mother Mst. Zahida when were on walk, were
confronted by two unknown culprits at about 10.15 p.m., who besides robbing his
father of his cell phone, on resistance, by causing him fire shot injuries,
have fled away, he has been taken to Jinnah Hospital, there he has died of such
injuries; on such intimation, he went to Jinnah Hospital, there he was asked by
police officials to make statement under section 154 Cr.P.C which he made on
the next date of incident, it was recorded by I.O/ASI Aqeel Ahmed PS Defence
Karachi, it then was formally incorporated into FIR, it was against unknown
culprits, it does not contain name of any witness to the incident excepting
mother of the complainant, who as per him, was able to identify the culprits.
On investigation, P.Ws Muhammad Bilal and Tahir were introduced by the police, with
narration that they have seen the culprits at the time of incident. As per
I.O/SIP Muhammad Zahoor, both of the appellants were apprehended, from
appellant Faisal was secured the unlicensed pistol of 30 bore with magazine
containing 03 live bullets of same bore, with its number rubbed, which
allegedly was used by him in commission of incident, under memo which was
prepared, in presence of PWs/mashmirs ASI Hukumdad and PC Sabir Ali. No
independent person was associated to such recovery thought it was effected on
spy information, which appears to be significant. The cell phone of the
deceased, as per the said I.O/SIP was secured from PW-Farhan. As per him, it
was left with him, by appellant Faisal for the purpose of purchase. Be that as
it may, the recovery of the cell phone of the deceased, if any, apparently was
not from any of the appellant, as such they could hardly be connected with the
cell phone of the deceased. It was further stated by the said I.O/SIP that
appellant Faisal then was subjected to identification parade through P.Ws
Muhammad Bilal and Tahir, it was conducted on 29.01.2015 by Mr. Mumtaz Ali
Solangi, the Magistrate having jurisdiction, whereby they identified him to be one
of the culprit responsible for causing fire shot injuries to the deceased. Why P.W
Mst. Zahida was not called upon to identify appellant Faisal before the
Magistrate being wife of the deceased and natural witness to the incident? No
explanation to such omission is offered by the prosecution. On asking, P.Ws
Muhammad Bilal and Tahir were fair enough to admit that on 23.01.2015, they
were called at CRO office and were shown the photographs of the appellants. If
it was so, then identification parade of appellant Faisal, through them was nothing
but hollow formality. It was night time incident, therefore, identify of
appellant Faisal by P.Ws Muhammad Bilal and Tahir with full features even
otherwise, could reasonably be judged with doubt. No reason has been assigned
by the prosecution, for its failure to conduct identification parade of
appellant Azhar @ Radhay. The CCTV recording though obtained by the said
I.O/SIP from the place of incident has not been subjected to forensic test;
such omission on his part too could not be ignored. In these circumstances, it
would be safe to conclude that the prosecution has not been able to prove its
case against the appellants beyond shadow of doubt and to such benefit they are
found entitled.
6. In
case of Abdul
Khaliq vs. the State (1996 SCMR 1553),
it was observed by Hon’ble Court
that;
“----S.161---Late recording of
statements of the prosecution witnesses under section 161 Cr.P.C. Reduces its
value to nil unless delay is plausibly explained.”
7. 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.”
8. 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".
9. 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.
10. The
instant jail appeals are disposed of accordingly.
JUDGE