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