IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No.197 of 2020

Appellant: Sajjad Khan through M/s Habib Ahmed and Shamsher Khan Azimi, advocates

The State: Through Mr. Fahim Hussain Panhwar, Deputy Prosecutor General Sindh

Complainant: Through M/s Muhammad Jamil and Sarosh Jamil, advocates

Date of hearing: 27.10.2022

Date of judgment: 27.10.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant at the instance of co-accused Mst. Shahnaz committed murder of Ali Sher by causing him fire shot injuries for that they were booked and reported upon. On conclusion of trial, co-accused Mst. Shahnaz was acquitted while appellant was convicted under section 302(b) PPC and sentenced to undergo life imprisonment and to pay compensation of Rupees One Million to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for six months by learned I Additional Sessions Judge/MCTC Malir Karachi vide judgment dated 03.02.2020, which is impugned by the appellant before this Court by preferring this appeal.

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 complainant party on the basis of extra judicial confession which was inadmissible in evidence and on the same evidence co-accused Mst. Shahnaz has already been acquitted. By contending so, he sought for acquittal of the appellant.

3. Learned DPG for the state and learned counsel for the complainant by supporting the impugned judgment have sought for dismissal of the instant appeal by contending that besides extra judicial confession, the circumstantial evidence fully implicate the appellant in the commission of the incident. In support of their contention they relied upon the case of Syed Ali Raza Shah and others vs. The State (2015 PCr.LJ 1074).

4. Heard arguments and perused the record.

5. It was stated by complainant Ajab Khan and PW Bahadur Sher that on 06.09.2019 deceased Ali Sher after leaving his house gone missing and on 08.09.2019 they were intimated by PW Laiqzada that the dead body of the deceased has been recovered from Cattle Colony, Karachi and has been taken to Jinnah Hospital Karachi. On such information they went there and identified the dead body of the deceased to be of Ali Sher. PW Laiqzada has not been examined by the prosecution. His non-examination could not be overlooked. It was further stated by them that they on 10.09.2019 lodged report of the incident with Police Station Sukhan against unknown culprits. It was lodged with delay of about four days to the incident and two days of recovery of the dead body of the deceased. Such delay in lodgment of FIR could not be overlooked. It was stated by them that subsequently they suspected Mst. Shahnaz to be responsible for the incident and intimidated the police accordingly. She was apprehended by the police and on inquiry she disclosed before the police that she has arranged the death of the deceased through the appellant and with him she was having illicit relationship. Subsequently, the appellant was apprehended by the police and he during course of investigation allegedly confessed his guilt before the police. If for the sake of argument, if it is believed that such statement was actually made by the appellant before the police 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. On arrest, from the appellant as per IO/SIP ASI Muhammad Yasin was secured the unlicensed pistol of 09 bore which he allegedly used in commission of incident. As per IO/SIP Muhammad Ilyas Tanoli such pistol on forensic examination was found matched with the empties secured from the place of incident. So far recovery of empties from place of incident is concerned the complainant came with different version. As per him, nothing was secured by the police from place of incident. In that situation, the similarity of the empties allegedly secured from the place of incident with the pistol allegedly secured from the appellant is appearing to be doubtful. Now it to be examined interview of the appellant with PW Mukaram Khalil, the reporter of a news channel, whereby he has admitted his guilt which as per prosecution is connecting the appellant with the commission of the incident. PW Mukaram Khalil was fair enough to say that his statement was not recorded by the police. If it was so, then he could hardly be treated to be a witness of the prosecution. It is believed that he could be treated as a witness of the prosecution then the interview of the appellant which he has conducted could hardly be relied upon for the reason that; it was recorded at police station Sukhan when the appellant was in police custody, it was edited, therefore, there is every possibility that it was neither true nor voluntarily. The appellant during his course of examination u/s 342 Cr.PC when was confronted with the interview was fair enough to say that police threatened him to make such interview otherwise his mother and sister would also be involved in this case. If the statement made by the appellant is believed to be true and considered in juxtaposition with the evidence of the prosecution then it prima facie suggests that the interview of the appellant was obtained by putting him under duress. In these circumstances, it is concluded safely that the prosecution has not been able to prove its case against the appellants beyond shadow of doubt and to such benefit he too is found entitled.

6. In case of Muhammad Asif vs the State (2008 SCMR 1001), it has been held by Hon’ble apex Court that;

“…..yet there is a delay of about two hours which has not been explained. Similarly P.W.7 stated during cross-examination that the police reached the spot at twelve noon and about half an hour was consumed in conducting inquest proceedings and thereafter the dead body was sent to the hospital. He further stated that he accompanied the dead body which was taken in a wagon to the hospital and that it took only 15 or 20 minutes in reaching the hospital. In that case the dead body would have been received at the hospital by 1-00 p.m. On the contrary, the doctor, who is an independent witness, stated that he immediately started post mortem examination after the receipt of body and the time of post-mortem given by him was 4-50 p.m. that means that the body remained at the spot for quite some time. The F.I.Rs. which are not recorded at the police station suffer from the inherent presumption that the same were recorded after due deliberations…...”

7. In case of Sardar Bibi and others vs. Munir Ahmed and others (2017 SCMR 344), it has been held by the Hon’ble Apex Court that;

“When the eye-witnesses produced by the prosecution were disbelieved to the extent of one accused person attributed effective role, then the said eye-witnesses could not be relied upon for the purpose of convicting another accused person attributed a similar role without availability of independent corroboration to the extent of such other accused”.

8. 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".

9. The case law which is relied by learned DPG for the State and learned counsel for complainant is on distinguishable facts and circumstances. In that case, the dead body of the deceased was recovered at the pointation of the accused from his house. In the instant case, the dead body of the deceased has not been recovered on the pointation of the appellant.

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, 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.

11. Above are the reasons of short order dated 27.10.2022, whereby the instant criminal appeal was allowed.

J U D G E