IN THE HIGH COURT OF SINDH, AT KARACHI

 

Criminal Jail Appeal No. 347 of 2020

                                                       

 

Appellant:                    Muhammad Asif through Syed Nadeem-ul-Haque advocate

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The State:                      Through Mr. Khadim Hussain, Additional Prosecutor General Sindh

 

Date of hearing:           03.10.2022

 

Date of judgment:        03.10.2022

 

 

J U D G M E N T

 

IRSHAD ALI SHAH, J- It is alleged that the appellant with one more culprit not only committed murder of Mirza Adeel Baig by causing him fire shot injuries, but caused fire shot injuries to P.W Ayaz with intention to commit his murder too and then made their escape good from the place of incident by making ineffective fires at complainant Tauseef, for that the present case was registered. On investigation, the appellant was apprehended and then was reported upon by the police to face trial for the above said offence. On conclusion of the trial, he was convicted under Section 302(b) r/w 34 PPC and sentenced to undergo imprisonment for life as Tazir and to pay Rs.10,00,000/- as compensation to the legal heirs of the deceased; he was further convicted under Section 324 r/w 34 PPC and sentenced to undergo R.I for 10 years and to pay fine of Rs.50,000/- and in default whereof to undergo simple imprisonment for 04 months and to pay Rs.100,000/- as compensation to the said injured; all the sentences were ordered to run concurrently with benefit of section 382-B Cr.P.C by learned V-Additional Sessions Judge, Karachi East by judgment dated 19.02.2020, which is impugned by the appellant before this Court by preferring the instant appeal from jail.

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; the identification parade of the appellant being defective one has been relied upon without lawful justification and evidence of the P.Ws being doubtful in its character has been believed without assigning cogent reasons by learned trial Court, therefore, the appellant is entitled to his acquittal by extending him benefit of doubt. In support of his contentions, he has relied upon cases of Muneer Ahmad vs. The State (1998 SCMR 752) and Muhammad Afzal alias Abdullah and others vs. The State and others (2009 SCMR 436).

3.       Learned Addl. P.G for the state by supporting the impugned judgment has sought for dismissal of instant jail appeal by contending that the appellant has rightly been convicted by learned trial Court by relying upon the identification parade. In support of his contentions, he has relied upon the cases of Muhammad Asghar and four others vs. The State (2004 SCJ 387) and Muhammad Zaman vs. The State (2007 SCMR 813).

4.       Heard arguments and perused the record.

5.       The name and description of the appellant are neither disclosed in FIR by the complainant nor in 161 Cr.P.C statements by the witnesses, which appears to be significant. It was stated by complainant Tauseef that on 03.02.2015 when he, deceased Mirza Adeel Baig and P.W Ayaz went to meet with Dr. Nadeem, there came the appellant with one more culprit, on motorcycle and started to make fires at them, those fires hit to Mirza Adeel Baig and Ayaz; Mirza Adeel Baig died of such injuries while P.W Ayaz was taken to hospital in injured condition and the incident then was reported to police. It was further stated by him that on 09.02.2015, he and P.W Mirza Raheel Baig went at PS Zaman Town and identified the appellant to have fired at the deceased and PW Ayaz, he admitted before them and the police that he has committed the above said incident. The identity of of the appellant by the complainant and P.W Adeel Baig at police station is of no help to the case of prosecution. If it is believed that the appellant actually has admitted his guilt before the complainant, PW Mirza Adeel Baig and the police even then such statement being inadmissible in evidence in terms of Article 39 of Qanun-e-Shahdat Order, 1984, could not be used against him. P.W Ayaz being injured, is star witness to the incident, it was stated by him that on the date of incident, he, the deceased and the complainant went to meet with Dr. Nadeem, there they were confronted by the appellant and one more culprit, who came on motorcycle and started to make fires at them, those fires hit to the deceased and him; they were taken to hospital and then incident was reported to police by the complainant. It was further stated by him that on 29.04.2015, during course of identification parade conducted by Mr. Abdul Razzak, the Magistrate having jurisdiction he identified the appellant to be culprit responsible for committing death of the deceased and causing fire shot injuries to him.  The appellant, was formally arrested in the present case by SIP Muhammad Aslam on 08.02.2015 under memo, therefore, subjecting the appellant to identification parade on 27.04.2015 with delay of about 83 days to his formal arrest is appearing to be surprising. No explanation to such delay offered by the prosecution. There is possibility that description of the appellant during intervening period might have been disclosed to PW Ayaz by the complainant and P.W Mirza Raheel Baig, who admittedly have seen him already at Police Station. Evidence of P.Ws Mirza Raheel Baig and Amjad Ali lends no support to the case of prosecution, as they are not eye witnesses of the incident.  The forensic report produced by I.O/SIP Muhammad Arif prima facie suggests that the empties secured from the place of incident are found dissimilar to the pistol secured from the appellant. The appellant is said to have been acquitted in the case relating to recovery of unlicensed weapon. 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 his plea of innocence could not be lost sight of.

6.       In the case of Shafqat Mehmood and others vs. The State                              (2011 SCMR 537), the Hon’ble Apex Court has held that;

“……Identification parade was held after a delay of 7 days after the arrest of the accused. This delay creates a lot of doubt regarding the identification parade as the witnesses had various opportunities to see the accused persons…”

 

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 Addl. P.G for the state could not be given preference over case Shafqat Mehmood (supra) being latest in time.

9.       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, convicted and sentenced by learned trial Court and he shall be released forthwith, if is not required to be detained in any other custody case.

10.     The instant jail appeal is disposed of accordingly.

                      JUDGE