IN THE HIGH COURT OF SINDH, AT KARACHI
Criminal Jail Appeal No. 347 of 2020
Appellant: Muhammad
Asif through Syed Nadeem-ul-Haque advocate
N
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