IN THE HIGH COURT OF SINDH, AT KARACHI
Criminal Jail Appeal No. 120 of 2020
Appellant: Faraz
Ahmed through Mr. Abdullah Nizamani advocate
The State: Mr.
Khadim Hussain, Additional Prosecutor General Sindh
Complainant: Sujjat
Ali through Mr. Muhammad Nazir Tanoli advocate
Date of hearing: 15.12.2022
Date of judgment: 15.12.2022
J U D G M E N T
IRSHAD ALI SHAH, J- It is alleged that the appellant committed
death of Wajahat Ali Khan by causing him fire shot injuries, for that he was
booked and reported upon. On conclusion of trial, he was convicted for the said
offence, without specifying the penal section and was sentenced to undergo life
imprisonment and to pay compensation of Rupees Two Million to the legal heirs
of the deceased with benefit of section 382(b) Cr.P.C by learned I-Additional
Sessions Judge/MCTC Malir, Karachi, vide judgment dated 07.12.2019, 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 at the instance of the complainant and he has been
convicted and sentenced by learned trial Court, virtually on the basis of no
evidence. By contending so, he sought for acquittal of the appellant by
extending him benefit of doubt.
3. Learned Addl. P.G for the state and
learned counsel for the complainant by supporting the impugned judgment have
sought for dismissal of instant jail appeal by contending that on arrest from
the appellant has been secured the pistol which allegedly was used by him in
commission of incident and same has been found matched with the empties
collected from the place of incident and prosecution has been able to prove its
case against him beyond shadow of doubt.
4. Heard arguments and perused the record.
5. It is stated by complainant Shujjat Ali
Khan that on the night of incident he was intimated by Mst. Sadia, that her
husband Wajahat Ali Khan has been caused fire shot injuries and he has been
taken to Jinnah Hospital; on such information, he and P.W Waseem Abbas went to
Jinnah Hospital, there they were intimated that the deceased has succumbed to
injuries. It was further stated by him that on inquiry, he came to know that the
deceased has been caused fire shot injuries by the appellant; subsequently, he
made statement under Section 154 Cr.P.C, it was recorded by I.O/ASI Abdul
Jabbar of PS Airport, Malir, Karachi. It does not contain name of any of the witness
to the incident. On investigation, P.Ws Muhammad Shahid and Waseem Abbas were
introduced by I.O/SIP Badar Shakeel by recording their 161 Cr.P.C statements;
those admittedly were recorded on the next date of incident. On asking P.W Waseem
Abbas was fair enough to admit that he has not seen the appellant causing fire
shot injuries to the deceased. Evidence of P.W Muhammad Shahid is only to the
extent that he has seen the appellant when was running towards graveyard with
the pistol. The evidence of the complainant and above named P.Ws prima facie
suggests that they have not actually seen the appellant causing fire shot
injuries to the deceased, as such; their evidence could hardly be relied upon
to base conviction. Mst. Sadia being wife of the deceased, who actually
intimated the complainant about the incident; has not been made witness to the
case by the prosecution which appears to be surprising; such omission on the
part of prosecution could not be ignored. Evidence of P.W Muhammad Junaid Jamal
is only to the extent that he intimated the police about the incident on 15
number. His evidence is of no help to the case of prosecution. Evidence of I.O/ASI
Abdul Ghaffar is only to the extent that on intimation, he with his police
party went at the place of incident. On asking, he was fair enough to admit
that no person at the place of incident disclosed to him that he has seen the
incident. As per I.O/SIP Badar Khalil, on arrest, it was disclosed to him by
the appellant that he has used his licensed pistol in crime and it was secured by
him accordingly. If for the sake of arguments, such disclosure is believed to
be true, even then same being inadmissible in terms of Article 39 of
Qanun-e-Shahadat Order, 1984 could not be used against him as evidence. It is
settled by now that the recovery by itself without any corroboration is not
substantial piece of evidence and the same does not itself prove the offence. The
pistol so secured from the appellant was sent to the forensic expert and it was
found matched with the empties collected from the place of incident, such
dispatch apparently as is appearing from evidence of I.O/SIP Khalil was joint,
therefore, FSL report though positive is inconsequential. 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 and to such
benefit he is 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 case of Muhammad Jamil vs. Muhammad Akram and others (2009 SCMR 120), it has been held by the Hon’ble Apex Court
that;
“When the direct
evidence is disbelieved, then it would not be safe to base conviction on
corroborative or confirmatory evidence.”
8. In
the case of Muhammad Javed vs. The State (2016 SCMR 2021), it has been held by the Hon’ble Apex Court
that;
“….although a report of the Forensic Science
Laboratory was received in the positive in respect of matching of the firearm
recovered from the appellant's custody with a crime-empty secured from the
place of occurrence yet the investigating officer (PW9) had clearly
acknowledged before the trial court that the crime-empty had been sent to the
Forensic Science Laboratory on the day when a carbine had been recovered from
the custody of the appellant.”
9. 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".
10. 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.
11. The
instant jail appeal is disposed of accordingly.
JUDGE