THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No.406 of 2022

Appellant: Muhammad Muzzamil son of Muhammad Jan through Mr. Habib-ur-Rehman Jiskani, advocate

The State: Through Mr. Khadim Hussain Khuharo, Additional Prosecutor General Sindh, assisted by complainant Asghar Hussain Manika

Date of hearing: 30.09.2022

Date of judgment: 30.09.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant with one more culprit during course of robbery fired and injured PWs Muhammad Hadi and Macha Khan, for that instant case was registered. After due trial, the appellant was convicted under section 397, PPC and sentenced to undergo rigorous imprisonment for seven (7) years with benefit of section 382-B Cr.PC, by learned II Additional Sessions Judge, Karachi South, vide judgment dated 23^rd May, 2022, which is impugned by the appellant before this Court by way of instant appeal.

2. It is contended by the learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police, by foisting upon him robbed property and crime weapon; the identification parade of the appellant was defective one and evidence of the PWs 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.

3. However, learned Additional P.G., for the State, who is assisted by the complainant, by supporting the impugned judgment has sought for dismissal of the instant appeal by contending that there was no defect in identification parade and prosecution has been able to prove its case against the appellant beyond shadow of doubt.

4. Heard arguments and perused the record.

5. It is stated by complainant Asghar Hussain Manika that on the date of incident, he and his son PW Muhammad Hadi when were sitting outside in their car out of Civil Hospital, Karachi, there came two culprits and snatched cell phone from his son Muhammad Hadi, who chased them on that he was fired at, such firing also hit to passerby PW Macha Khan; the incident then was reported to police. Name and description of the culprits involved in the incident were not disclosed by the complainant in his FIR, which appears to be significant. The FIR so lodged by the complainant at one moment was disposed of by the police under “A” Class. Subsequently, the appellant was arrested by the police party of P.S. Garden in some other case, his custody was taken in the present by IO/SIP Muhammad Paryal and during course of investigation, he allegedly admitted his guilt before him by making such statement. If for the sake of argument, it is believed that the appellant made such statement before IO/SIP Muhammad Paryal even then same being inadmissible in evidence in terms of Article 39 of the Qanun-e-Shahadat Order, 1984, could not be used against him. After arrest as per SIO/SIP Muhammad Paryal he produced the appellant before Magistrate having jurisdiction for conducting his identification parade, it was adjourned and then conducted on 10.02.2021. If it was so, then by that act the Magistrate having jurisdiction provided a chance to the complainant to have a glimpse of the appellant, who even otherwise, has alleged before the Magistrate that he has been shown by the police to the complainant. Be that as it may, it was stated by Mr. Adil Hayyat, the Magistrate, who conducted the identification parade that he consumed 45 minutes in conducting the identification parade. He, in that respect, is belied by the complainant. As per him, it was conducted within 10/15 minutes. None of the mashir to identification memo is examined by the prosecution, for no obvious reason. The identification parade was not conducted through injured PWs Muhammad Hadi and Macha Khan. Explanation offered for such omission by PW Muhammad Hadi was that he during such period, he was in hospital. Nothing has been brought on record which may suggest that PW Muhammad Hadi at the time of identification parade was actually confined in Hospital. In that situation, identification parade being doubtful could hardly be relied upon. Surprisingly, PW Macha Khan, who has also sustained fire shot injuries during the course of incident, has not been examined by the prosecution. The inference which could be drawn of his non-examination under Article 129(g) of the Qanun-e-Shahadat Order, 1984, would be that he was not going to support the case of prosecution. In these, circumstances, it would be hard to maintain the conviction against the appellant on the basis of recovery of crime weapon and robbed cell phone which is alleged by the appellant to have been foisted upon him by the police.

6. The conclusion which could be drawn of the above discussion would be 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.

7. In case of Tariq Pervaiz vs the State (1995 SCMR 1345). It has been held by the Hon’ble Supreme Court that:-

“For giving benefit of doubt to an accused, it is not necessary that there should be many circumstances creating reasonable doubt in a prudent mind about the guilt of accused, then he would be entitled to such benefit not as a matter of grace and concession but of right.”

8. In view of the facts and reason discussed above, the conviction and sentence recorded against the appellant by way of impugned judgment are set-aside; consequently, the appellant is acquitted of the offence for which he was charged, tried, convicted and sentenced by learned trial Court. He is in custody, to be released forthwith, if not required to be detained in any other custody case.

9. Above are the reason of short order dated 30.09.2022, whereby the instant appeal was allowed.

J U D G E