IN THE HIGH COURT OF SINDH, AT KARACHI
Criminal Appeal No. 236 of 2018
Appellants: Haider
Ali through Mr. Abdul Qadir Soomro advocate
The State: Through
Mr. Faheem Hussain Panhwar, Deputy Prosecutor General Sindh and Mr. Azhar Niazam
Baloch Assistant Prosecutor General for the state
Complainant: Kashif
Ahmed M/s Muhammad Wasif Riaz, Dr. Muhammad Tahir, Hafiz M. Suleman and Javed
Ali advocates
Date of hearing: 13.09.2022
Date of judgment: 13.09.2022
J U D G M E N T
IRSHAD ALI SHAH,
J-
It is the case of
prosecution that the appellant and co-accused Mansoor alias Lara on being hired
by Aftab alias Sultan through Nadeem committed murder of Sardar Zulfiqar, a
practicing advocate by causing him fire shot injuries, for that they were
booked and reported upon.
2. After due trial, the appellant and
co-accused Mansoor alias Lara were convicted for offence punishable under
Section 302(b) PPC and sentenced to undergo rigorous imprisonment for life and
to pay fine of Rs.100,000/- each payable to the legal heirs of the deceased as
compensation and in default whereof to undergo simple imprisonment for 06
months with benefit of section 382-B Cr.P.C by learned VI-Additional Sessions
Judge, Karachi South vide judgment dated 26.02.2018, which was impugned by the
appellant and co-accused Mansoor alias Lara before this Court by preferring the
instant appeal, which was abated in respect of co-accused Mansoor alias Lara on
account of his death.
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 on the basis of defective identification parade that too on
point of vicarious liability and evidence of the prosecution witnesses being
inconsistent and doubtful has been believed by learned trial Court, without
lawful justification therefore, he is entitled to acquittal by extending him
benefit of doubt, even otherwise he is about to complete his jail term. In
support of his contentions, he relied upon the cases of Noor Muhammad vs. The State and another (2010 SCMR 97), Zeeshan @ Shani
vs. The State (2012 SCMR 428) and Sardar Bibi and another vs. Munir Ahmed and
others (2017 SCMR 344).
3. Learned DPG for the state and learned
counsel for the complainant have sought for dismissal of instant appeal by
contending that the appellant has been involved in commission of incident on
the basis of identification parade, which was conducted through natural
witnesses and he has facilitated co-accused Mansoor alias Lara to commit death
of the deceased being hired assassin. In support of their contentions, they
have relied upon the cases of Qamar-uz-Zaman
alias Kalia vs. The State (2011 SCMR 856), Sikandar Shah vs. Raza Shah and
another (2015 SCMR 10), The State/ANF vs. Muhammad Arshad (2017 SCMR 283), Akhmat
Sher and others vs. The State (2019SCMR 1365), Waqar A. Shamsi and another vs.
The State (2019 SCMR 2039) and Aurangzeb vs. The State (2020 SCMR 612).
4. Heard arguments and perused the record.
5. Complainant Kashif Ahmed and P.W
Muhammad Rasheed are not eye witnesses of the incident therefore, their
evidence could hardly lend support to the case of prosecution. FIR is lodged
against unknown culprits. As per prosecution the descriptions of the accused
involved in the incident were disclosed by P.Ws Shahid Iqbal and Muhammad
Shahban. The appellant and co-accused Mansoor alias Lara were arrested allegedly
by P.W I.O/SIP Ejaz Ahmed, after an armed encounter together with the pistols,
used by them in commission of incident and they during course of interrogation
admitted before the police that they have committed the murder of the deceased
by causing him fire shot injuries being hired by Aftab alias Sultan through
Nadeem. If for the sake of arguments, it is believed that the appellant and
co-accused Mansoor alias Lara had actually made such statement before the
police, even then same being inadmissible in terms of Article 39 of
Qanun-e-Shahadat Order, 1984 could hardly be used as evidence. After arrest,
the appellant and co-accused were subjected to identification parade through
P.Ws Shahid Iqbal and Muhammad Shahban, which was conducted by PW Mr. Naseer
Noor Khan, the Magistrate having jurisdiction, whereby they allegedly identified
the appellant and co-accused Mansoor alias Lara to be responsible for the death
of the deceased. It was stated by P.Ws Shahid Iqbal and Muhammad Shahban that
appellant and co-accused Mansoor alias Lara came at the place of incident on
their motorcycle; co-accused Mansoor alias Lara committed death of the deceased
by causing him fire shot injuries after pushing him in his car, then both of
them fled away on their motorcycle. Since the involvement of the appellant and
co-accused Mansoor alias Lara is mainly based on identification parade,
therefore, it is to be scrutinized minutely. It was held on 4th day
of arrest of the appellant and co-accused Mansoor alias Lara, inside of jail.
No plausible explanation to such delay is offered by the prosecution. It was
stated by P.W Muhammad Shahban that during course of identification parade, all
the persons in row were found wearing the same kind of clothes. He in that
respect is belied by P.W Mr. Naseer Noor Khan, the Magistrate having
jurisdiction by stating that the dummies were not found wearing the clothes of
same colour. It was stated by P.W Mr. Naseer Noor Khan that Superintendent Jail,
arranged the dummies on his direction, they all were UTPs. He in that respect
is belied by PW IO/SIP Ejaz Ahmed by stating that the dummies were arranged by
him. All these factors collectively have made the identification parade of the
appellant and co-accused Mansoor alias Lara to be doubtful. In these
circumstances, involvement of the appellant in commission of incident on the
basis of vicarious liability being facilitator to co-accused Mansoor alias Lara
apparently is appearing to be doubtful.
6. In 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".
7. The case law which is relied upon by
learned DPG for the State and learned counsel for the complainant is based on
distinguishable facts and circumstances, in none of the said case, the
involvement of the accused was based on identification parade, therefore, it
hardly lends support to the case of prosecution.
8. In view of 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
and convicted by learned trial Court and he shall be released forthwith, if is
not required to be detained in any other custody case.
9.
Above of the reasons of short
order dated 13.09.2022, whereby the instant appeal was allowed
JUDGE