IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 472 of 2021

  

                                                       

Appellant:                    Rahat Ali Sachwani @ Punjabi through M/s Salahuddin Khan Gandapur and Mansoor Ahmed Buriro advocates

 

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

 

Complainant:               Tajam-ul-Ali Wahid through Mr. Mamoon A.K. Shirwany advocate

 

Date of hearing:           13.12.2022

 

Date of judgment:        20.12.2022

 

 

J U D G M E N T

 

IRSHAD ALI SHAH, J- It is alleged that the appellant with rest of the culprits in furtherance of their common intention committed murder of Shahzaib by causing him fire shot injuries, for that the present case was registered. On investigation, the appellant was challaned by the police to face trial for the said offence; at trial, he denied the charge and prosecution to prove it, examined complainant Tajam-ul-Ali Wahid and his witnesses and then closed its side. The appellant in his statement recorded u/s 342 Cr.P.C denied the prosecution allegations by pleading innocence; he did not examine anyone in his defence or himself on oath. On conclusion of trial, he was convicted u/s 302(b) r/w section 34 PPC and sentenced to undergo imprisonment for life and to pay compensation of Rs.200,000/- 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, Karachi East vide judgment dated 12.08.2021, which is impugned by him before this Court by preferring the instant 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 party; his name is not taking place in FIR; no active role even otherwise, in commission of incident, is attributed to him and evidence of the P.Ws being doubtful in its character 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. In support of his contentions, he relied upon cases of (i) Hayatullah vs. The State (2018 SCMR 2092), (ii) Mst. Asia Bibi vs. The State and others (PLD 2019 S.C 64), (iii) Majeed alias Majeedi and others vs. The State and others (2019 SCMR 301) and (iv) Muhammad Rafique alias Feeqa vs. The State (2019 SCMR 1068).  

3.       It is contended by learned DPG for the state and learned counsel for the complainant that name of the appellant transpired on investigation with allegation that he caught hold hand of the deceased at the time of his murder, which is confirmed in CCTV recording, as such he is vicariously liable for commission of the incident. By contending so, they sought for dismissal of the instant appeal. In support of their contention, they relied upon case of (i) Abdul Rashid and another vs. The State (1984 SCMR 1105) (ii) State vs. Muhammad Yasin Memon alias Yasin Memon and another (2011 SCMR 401) and (iii) Ishtiaq Ahmed Mirza and 2 others vs. Federation of Pakistan and others (PLD 2019 S.C 675).

4.       Heard arguments and perused the record.

5.       It is stated by the complainant that it was intimated to him by Aneel from USA that his brother Shahzaib has been murdered and his dead body is taken to Civil Hospital, Karachi, for postmortem, on such intimation, he went at the Civil Hospital, Karachi, there came I.O/SIP Asif Raza and recorded his 154 Cr.P.C statement, it was recorded on 04.03.2019. In FIR he has implicated Ali alias Boxer, Akbar and two unknown culprits to be responsible for committing murder of the deceased by causing him fire shot injuries. Obviously, the complainant is not an eye witness to the incident, therefore, his evidence hardly lends support to the case of prosecution. It was stated by P.W Bilal Akbar Ali that at the time of incident, he and the deceased proceeded to house of his cousin at Seven Star building, they reached there at about 0040 hours, there they found a person talking with someone on cell phone, in parking area of the building, on inquiry, he disclosed to them that he is Chairman of the Union of the building. By saying so, he abused them, there arose scuffle between them and that person and on cries there came few women who started to beat them; they were also found making phone call to someone. Neither any of that woman or the person with whom the deceased and P.W Bilal Akbar Ali had a scuffle has been examined; such omission on the part of prosecution could not be overlooked. It was further stated by P.W Bilal Akbar Ali that they saved themselves and in the meanwhile there came sliver color Passo car, there from, came out three persons, who, later-on were identified to be the appellant, Ali Boxer and Akbar, with whom they had also altercation. 4th person was standing at some distance. Ali Boxer in order to create harassment fired at the ground, on which they moved backward, thereafter, all the three persons caused fist and kicks blows to the deceased. It was further stated by P.W Bilal Akbar Ali that the appellant and Akbar caught hold the deceased from his hand while Ali Boxer caused him fire shot injuries; he by sustaining those fire shot injuries, fell down; the appellant and others then made their escape good from the place of incident by making fires; the deceased was taken to Civil Hospital, Karachi, by police personnel, on police mobile, they were followed by him. It was stated by P.W Majid Khan that on the date of incident, when he was present near to the place of incident there came Passo car with three persons, sitting therein, they came out from the car; one amongst them made fire and then they maltreated a body, whose name, he came to know later on as Shahzaib. In the meanwhile, one person with healthy composure, whose name, he came to know later on as Ali Boxer, fired at Shahzaib. With him, were the appellant and Akbar. It was stated by P.W Afsar Khan that on the date of incident, when he was available near to the place of incident, there he found coming a Passo car with three persons sitting therein, as soon as they came out of the car, he heard fire shot report and then they caused kicks and fist blows to a boy, whose name he came to know later on as Shahzaib. With him was P.W Bilal Ali Akbar. Then one amongst them whose name he came to know later on as Ali Boxer, made fires at Shahzaib, who after sustaining such fire shot injuries fell down and then, those three persons made their escape good through their car, while 4th person made his escape good by foot, there came the police party of P.S Soldier Bazar, they took the deceased to Civil Hospital, Karachi. Evidence of P.Ws Bilal Ali Akbar, Majid Khan and Afsar, if is believed to be true, then it prima facie, suggests that the specific role of committing death of the deceased by causing him fire shot injuries is attributed to Ali Boxer, who is still absconding. There is nothing in CCTV recording, which may suggest that the appellant was holding the hand of the deceased at the time of incident. The name of the appellant admittedly is not appearing in FIR, it was disclosed subsequently by the above named P.Ws in their 161 Cr.P.C statements, which as per I.O/SIP Faisal Gul were recorded on 07.03.2019, it was on 3rd day of the FIR. Those P.Ws even otherwise as per I.O/SIP Raja Intesar were not residents of seven star lodges. 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 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.       The case law which is relied upon by learned DPG for the state and learned counsel for the complainant is on distinguishable facts and circumstances, therefore, it hardly supports their contentions.

 

9.       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 for 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.

 

10.     The instant appeal is disposed of accordingly.

JUDGE