IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 187 of 2021

Appellants: Saifullah and Badshah Hussain through M/s Raj Ali Wahid Kunwar and Abdul Qadir Soomro advocates

Respondent: The State through Mr. Faheem Hussain Panhwar, Deputy Prosecutor General Sindh

Complainant: Adnan Niazi through Mr. Naseer Ahmed Khan advocate

Date of hearing: 06.12.2022

Date of Judgment: 12.12.2022

J U D G M E N T

IRSHAD ALI SHAH, J.- It is the case of prosecution that a security van, when was carrying money of Summit Bank, was attacked upon by the appellants and others and in that way they were able to take from such van Rs.27,82,000/- and on resistance caused fire shot injuries to security guards Ghulam Abbas, Muhammad Nazeer and passerby Imran, eventually, Ghulam Abbas died of such injuries, for that the present case was registered. On investigation, the appellants and co-accused Amjad Zaman, Yousuf Khan and Matiullah were challaned by the police. At trial, they denied the charge and prosecution to prove it, examined complainant Adnan Niazi and his witnesses and then closed its side. The appellants and others in their statements recorded under Section 342 Cr.P.C denied the prosecution’s allegations by pleading innocence; they examined none in their defence or themselves on oath. On conclusion of trial, co-accused Amjad Zaman, Yousuf Khan and Matiullah were acquitted while the appellants were convicted under Section 302(b) PPC and sentenced to undergo imprisonment for life and to pay compensation of Rs.100,000/- each to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for 01 year with benefit of section 382(b) Cr.P.C by learned VII-Additional Sessions Judge/ MCTC-II Karachi Central, vide judgment dated 22.03.2021, which is impugned by the appellants before this Court by preferring the instant appeal.

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 on the basis of same evidence accused Amjad Zaman, Yousuf Khan and Matiullah have been acquitted. By contending so, he sought for acquittal of the appellants by extending them benefit of doubt. In support of his contentions, he relied upon cases of (i) Riaz Ahmed vs. The State (2010 SCMR 846), (ii) Asfandyar and another vs. Kamran and another (2016 SCMR 2084), (iii) Sajjan Solangi vs. The State (2019 SCMR 872), (iv) Kanwar Anwaar Ali, Special Judicial Magistrate (PLD 2019 SC 488) and (v) Notice to Police Constable Khizar Hayat son of Hadait Ullah on account of his false statement (PLD 2019 S.C 527).

3. Learned D.P.G for the state and learned counsel for the complainant by supporting the impugned judgment have sought for dismissal of instant appeal by contending that on arrest from the appellants has been secured the robbed money to large extent and crime weapons; they have been identified by the witnesses during course of identification parade and their case is distinguishable to that of acquitted accused.

4. Heard arguments and perused the record.

5. It is stated by complainant Adnan Niazi that on 03.01.2020 he was intimated on cell phone that a van of Summit Bank containing cash has been attacked upon by two persons, resultantly, security guards Ghulam Abbas and Muhammad Nazeer have sustained fire shot injuries, while cash worth Rs.27,82,000/- has been taken away by the culprits. On such information, he went at the place of incident, there was intimated that injured have been shifted to Ziauddin Hospital, he then went at the Ziauddin Hospital, P.W Muhammad Nazeer was discharged while Ghulam Abbas was admitted in hospital who died of such injuries later-on; he then went at P.S Yousuf Plaza and lodged report of the incident against unknown culprits. The evidence of the complainant prima facie suggests that he is not eye witness to the incident, as such; his evidence hardly lends support to the case of prosecution. It was stated by P.W I.O/SIP Jan Muhammad that on 08.01.2020, he with his staff was conducting patrol, when reached at services road of main Shahrah-e-Pakistan, adjacent to Yousuf Plaza, there he came to know through spy information that an injured person in suspicious position is standing at water pump chowrangi. On such information, as per him, he proceeded to the pointed place; surprisingly, without associating with him any independent person to witness the possible arrest. At pointed place, as per him, he found that injured person about to sit in Taxi car, he was apprehended; on inquiry he disclosed his name to be Saifullah. On person search, from him was secured, a cell phone, his CNIC and registration book of motorcycle; he then was taken to PS Yousuf Plaza and then was referred to Abbasi Shaheed Hospital, for examination of his injuries, treatment and certificate. Appellant Saifullah as per IO/SIP Sajid Hussain was taken into custody in present case and he who during course of investigation, disclosed to him that he and his associates have committed the dacoity at Summit Bank at Water pump Branch, Karachi and have also made fires at the place of incident. If for the sake of arguments, it is believed that such disclosure was actually made by him to the said I.O/SIP, even then same being inadmissible in evidence in terms of Article 39 of Qanun-e-Shahadat Order, 1984 could not be used against him. It was further stated by the said I.O/SIP that P.Ws Muhammad Nazeer and Khalid Mehmood identified appellant Saifullah to be one of the culprit responsible for the above incident. Such exercise obviously was undertaken at police station. The identity of appellant Saifullah by P.Ws Muhammad Nazeer and Khalid Mehmood at police station without involvement of the Magistrate could hardly be relied upon. Subsequently, as per said I.O/SIP, on spy information, on 09.01.2020, he apprehended appellant Badshah Hussain, co-accused Amjad Zaman and Yousuf Khan and recovered from them, the unlicensed pistols of 30 bore from each, beside some other recovery; they were taken to P.S Yousuf Plaza, there on investigation, they became ready to produce the robbed amount. It was further stated by the said I.O/SIP that appellants Saifullah and Badshah Hussain led to recovery of Rs.10 lacs each while accused Amjad Zaman and Yousuf Khan led to recovery of Rs.250,000/- each from their respective houses. No independent person was associated to such recovery; such omission on part of the said I.O/SIP could not be overlooked. Surprisingly, the amount so recovered was not sealed at the spot; it was shown to P.Ws Faisal Qureshi and Owais employees of Summit Bank at P.S Yousuf Plaza, who identified it to be robbed money; it was followed by preparation of such memo. The identity of the robbed money at police station, that too without involvement of the Magistrate; could reasonably be judged with doubt. It was further stated by the said I.O/SIP that appellant Badshah Hussain was produced by him before the Magistrate having jurisdiction for his identification parade through P.Ws Khalid Mehmood and Muhammad Nazeer, it was conducted on 13.01.2020 by Mr. Asadullah Memon, it was on 4^th day of his arrest and no explanation to such delay is offered by the prosecution. By way of such identification parade P.Ws Khalid Mehmood and Muhammad Nazeer are said to have identified appellant Badshah Hussain to be one of the culprit responsible for the above said incident. P.W Muhammad Nazeer has attempted to support the case of prosecution by stating that the appellant Saifullah was identified by him at Police Station, while appellant Badshah Hussain was identified by him during course of identification parade before Magistrate. On asking it was denied by him that both the accused were shown to him in Court by I.O on identification parade. By denying so, it was voluntarily stated by him that only appellant Badshah Hussain was shown to him. If it was so, then it prima facie suggests that appellant Badshah Hussain was also shown to P.W Muhammad Nazeer even before his formal identification parade, therefore, such identification parade could reasonably be judged with doubt. Even otherwise, PW Khalid Mehmood, who as per memo of identification parade has also identified appellant Badshah Hussain to be one of the culprit, responsible for the above incident has not been examined by the prosecution. The inference which could be drawn of his non-examination under Article 129(g) of Qanun-e-Shahadat Order, 1984 would be that he was not going to support the case of prosecution. Evidence of P.W Imran who was passerby and sustained fire shot injury during course of above said incident is silent with regard to identity of any of the culprit involved in such incident; as such his evidence too could not lend any support to the case of prosecution. P.W Nadeem Hussain though has been examined twice was fair enough to admit that he cannot identify accused present in Court as he had not seen them because he was inside of the vehicle at the time of incident. By stating so, he has not supported the case of prosecution. In that context, it was contended by learned counsel for the appellants that they could hardly be connected with recovery of crime weapons, which have been foisted upon them by the police at the instance of the complainant party. No forensic examination of CCTV recording was conducted. The CDR consisting the CCTV recording produced at trial could not be played for the reason that it was found broken, therefore, no much reliance could be placed upon CCTV recording. The van the subject matter of the incident has never been produced at trial. By awarding no punishment to the appellants for committing robbery or for recovery of the robbed amount, they impliedly have been acquitted from such allegations even by learned trial Court. On the basis of same evidence, co-accused Amjad Zaman, Yousuf Khan and Matiullah have been acquitted. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove its case against the appellant too beyond shadow of doubt and to such benefit he is found entitled.

6. In case of Sardar Bibi and others vs. Munir Ahmed and others (2017 SCMR 344), it has been held by the Hon’ble Apex Court that;

“When the eye-witnesses produced by the prosecution were disbelieved to the extent of one accused person attributed effective role, then the said eye-witnesses could not be relied upon for the purpose of convicting another accused person attributed a similar role without availability of independent corroboration to the extent of such other accused”.

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 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 appeal is disposed of accordingly.

JUDGE