THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 501 of 2019

Appellant: Fazal Wahid through Mr. Allah Baksh Narejo advocate

The State: Through Ms. Seema Zaidi, Additional Prosecutor General Sindh

Date of hearing: 22.09.2022

Date of judgment: 22.09.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant and absconding accused Bilal Shah in furtherance of their common intention committed murder of Abdul Aqeel by causing him fire shot injuries, for that he was booked and reported upon. After due trial, the appellant was convicted under Section 302(b) 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 1^st Additional Sessions Judge, Karachi East vide judgment dated 21.08.2019, which is impugned by the appellant before this Court by preferring the instant appeal.

2. It is contended by learned counsel for the appellant that the appellant being youthful offender has been involved in this case falsely by the police at the instance of the complainant party on the basis of defective identification parade and evidence of P.Ws being doubtful in its character has been believed by learned trial Court without lawful justification, therefore, the appellant is entitled to his acquittal by extending him benefit of doubt. In support of his contentions, he relied upon case of Sarfraz alias Safu and others vs. The State (2017 YLR (Note) 220).

3. None has come forward to advance arguments on behalf of the complainant. However, learned Addl. P.G for the State by supporting the impugned judgment has sought for dismissal of the instant appeal by contending that the prosecution has been able to prove its case against the appellant beyond shadow of doubt.

4. Heard arguments and perused the record.

5. It was stated by complainant Abdul Shakeel that on 28.06.2014, it was intimated to him on cell phone by P.W Mumtaz that during course of robbery his brother Abdul Aqeel has sustained fire shot injuries and he has been taken to Jinnah Hospital. On such information, he proceeded to Jinnah Hospital there his brother died of such injuries and then he lodged formal FIR of the incident with police on 30.06.2014. It was recorded by I.O/ASI Malik Aziz-ur-Rehman. No plausible explanation to such delay is offered by the complainant though he himself is a police officer, which appears to be significant. In FIR neither the allegation of robbery is levelled nor description of the appellant or name of P.W Mumtaz is disclosed, which appears to be an improvement on the part of the complainant. The appellant together with pistol was arrested by the police and he then confessed his guilt by making such statement. If for the sake of arguments, it is believed that the appellant made such statement before the police, even then same being inadmissible in evidence in terms of Article 39 of Qanun-e-Shahadat Order, 1984 could not be used against him. Subsequently, I.O/SIP Muhammad Iqbal arranged for the identification parade of the appellant through P.W Mumtaz, which was held by Mr. Irfan Ali, the Magistrate having jurisdiction. The appellant actually was arrested on 12.07.2014, he was produced before Mr. Irfan Ali, the Magistrate having jurisdiction for identification parade before Mr. Irfan Ali, who adjourned the identification proceedings to 17.07.2014. By that act he obviously provided a chance to P.W Mumtaz to have glimpse of the appellant even if he was not shown to him by police at police station. It was stated by P.W Mumtaz that he identified the appellant during course of identification parade. Whatever is stated by him, could hardly be relied upon to maintain conviction for the reason that he was introduced in investigation by police by recording his 161 Cr.P.C statement, on the next date of the lodgment of FIR. Had he been actual witness to the incident, then his name ought to have been disclosed by the complainant being police officer in FIR itself, though it was lodged with un-plausible delay of about 02 days. The identification memo was attested by PWs/mashirs Rizwan and Fayyaz Ahmed. None of them has been examined by the prosecution, for no obvious reason, therefore, it would be hard to maintain conviction against the appellant on the basis of identification parade alone being unreliable. No question has been put to the appellant during course of his examination under Section 342 Cr.P.C

with regard to recovery of pistol from him therefore, he could not be connected with such recovery if any. 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 Imran Ashraf and others Vs.The State (2001 SCMR 424), it was observed by Hon’ble Court that;

“Section 154, Cr.P.C lays down procedure for registration of an information in cognizable cases and it also indeed gives mandatory direction for registration of the case as per the procedure. Therefore, police enjoys no jurisdiction to cause delay in registration of the case and under the law is bound to act accordingly enabling the machinery of law to come into play as soon as it is possible and if first information report is registered without any delay it can help the Investigating Agency in completing the process of investigation expeditiously. Any slackness or lukewarm attitude by the registering authority of FI.R. in fact intend to help the accused involved in the commission of the offence. Thus, it is advisable that the provisions of section 154 Cr.P.C. read with Rule 24.5 (c) of the Police Rules, 1934 be adhered to strictly. There should not be any negligence in recording the of F.I.R. and supplying copies to concerned quarters because departure from the mandatory provision of law creates a room to doubt the truthfulness of the allegation against the accused incorporated in F.I.R. As it has been observed hereinabove that in instant case the prosecution remained under serious criticism by the defence even on the question of promptly lodging of F.I.R”.

7. In case of Abdul Khaliq vs. the State (1996 SCMR 1553), it has been held by Hon’ble apex Court that;

“……It is a settled position of law that late recording of 161, Cr.P.C. statement of a prosecution witness reduces its value to nil unless there is plausible explanation for such delay.”

8. In case of Mohammad Shah v. The State (2010 SCMR 1009), it has been held by Hon’ble Apex Court that;

"It is important to note that all incriminating pieces of evidence, available on the record, are required to be put to the accused, as provided under section 342, Cr.P.C. in which the words used are "For the purpose of enabling the accused to explain any circumstances appearing in evidence against him" which clearly demonstrate that not only the circumstances appearing in the examination-in-chief are put to the accused but the circumstances appearing in cross-examination or re-examination are also required to be put to the accused, if they are against him, because the evidence means examination-in-chief, cross-examination and re-examination, as provided under Article 132 read with Articles 2(c) and 71 of Qanun-e-Shahadat Order, 1984....... It is well-settled that if any piece of evidence is not put to the accused in his statement under section 342, Cr.P.C. then the same cannot be used against him for his conviction."

9. 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".

10. 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.

11. Above of the reasons of short order dated 22.09.2022, whereby the instant appeal was allowed.

JUDGE