IN THE HIGH COURT OF SINDH, AT KARACHI

 

Criminal Appeal No. 383 of 2020

  

                                                       

 

Appellant:                    Naveed Iqbal through M/s Muhammad Ashraf Kazi, Irshad Ahmed Jatoi and Mudassir Khan advocates

 

The State:                      Mr. Hussain Bukhsh Baloch, Additional Prosecutor General Sindh

 

Complainant/L.Rs:         Through Mr. Liaquat Ali Awan advocate

 

Date of hearing:           11.02.2023

 

Date of judgment:        11.02.2023

 

 

J U D G M E N T

 

IRSHAD ALI SHAH, J- Facts in brief necessary for disposal of instant appeal are that the appellant with rest of the culprits in furtherance of their common intention allegedly committed murder of Saleem Ahmed by causing him fire shot injuries, for that the present case was registered. On investigation, the appellant, co-accused Iqbal alias German and Khurram Ahmed Mumtaz were challaned by the police to face trial for the above said incident. They denied the charge and prosecution to prove it, examined in all ten witnesses and then closed its side. The appellant and said co-accused in their statements recorded under Section 342 Cr.P.C denied the prosecution’s allegations by pleading innocence; they did not examine anyone in their defence or themselves on oath. However, they produced certain documents together with their statements to prove their innocence. On conclusion of trial, co-accused Iqbal alias German and Khurram Ahmed Mumtaz were acquitted, while the appellant was convicted under section 302(b) PPC and sentenced to undergo life imprisonment 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 Xth Additional Sessions Judge, Karachi South vide judgment dated 01.09.2020, 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 innocent has been involved in this case falsely by the police at the instance of legal heirs of the deceased; the complainant on account of his failure to implicate the appellant in commission of incident was declared hostile; 161 Cr.P.C of P.W Zain has been recorded with delay of about 20 hours, even to lodgment of FIR; pistol has been foisted upon the appellant and on the basis of same evidence, co-accused Iqbal alias German and Khurram Ahmed Mumtaz have been acquitted. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt. In support of his contentions, he relied upon cases of (i) Muhammad Din vs. The State (PLD 1959 S.C 491), (ii) Muhammad Sadiq and another vs. The State (PLD 1960 S.C 223), (iii) Lal Pasand vs. The State (1971 SCMR 569), (iv) Asghar Ali alias Sabah and others vs. The State and others (1992 SCMR 2088) and (v) State through Advocate General Sindh, Karachi vs. Farman Hussain and others (PLD 1995 S.C 1).

3.         Learned Addl. P.G for the state and learned counsel for the complainant/legal heirs of the deceased have sought for dismissal of the instant appeal by contending that on arrest from the appellant has been secured the pistol, which he used in commission of incident and it has been found matched with the empties secured from the place of incident; his presence at the place of incident is proved through DNA test of bud of the cigarette, which he left at the place of incident and his case is distinguishable to that of acquitted accused. In support of their contentions, they relied upon cases of (i) Mokha vs Zulfiqar and others (PLD 1978 S.C 10), (ii) Anwarul Hassan vs. The State (1980 SCMR 649), (iii) Muhammad Hanif vs. The State (PLD 1993 SC 895) and (iv) Muhammad Ashraf vs. Tahir alias Billoo (2005 SCMR 383).

4.         Heard arguments and perused the record.

5.         It is stated by I.O/SIP Maqsood Khan that on 09.04.2019, he was posted at P.S Kharadar, was intimated by PC Muhammad Siddique that an incident of firing has taken place at Juria Bazar Karachi, whereby one person has sustained fire shot injuries and has been shifted to Civil Hospital Karachi. On such information and on advice of his SHO, he went at Civil Hospital Karachi, there he was informed that it was Saleem Ahmed, who after sustaining fire shot injuries has died, he examined his dead body under memo and formally handed over the same to MLO for postmortem; which was not permitted to be conducted by his legal heirs. As per record, it was conducted by Dr. Ali Raza. It was further stated by said I.O/SIP that he then asked the relatives and sons of the deceased to come and lodge FIR of the incident. After consultation, they asked him to record statement of Abdul Razzak, being eye witness to the incident and employee of the deceased. Consequently, statement of the complainant u/s 154 Cr.P.C was recorded, which subsequently was incorporated into FIR. It was recorded with delay of about 04 hours to incident, yet it does not contain name and description of the culprits involved in the incident, which appears to be surprising. The complainant was declared hostile, perhaps, on account of his failure to disclose the name of the appellant during course of his examination. It was stated by P.W Zain that at the time of incident when he, complainant and the deceased were working at their shop, there came one person, on motorcycle with helmet on his face, was identified by him to be the appellant, who by taking out pistol, fired at his father and then fled away, his father was taken to Civil Hospital Karachi, in injured condition, there he died. It was night time incident, therefore identity of the appellant by P.W Zain that too at the time when he was having helmet on his face is appearing to be doubtful. On asking he was fair enough to admit that his 161 Cr.P.C statement was recorded by police on 10.04.2019, at evening time, it was with delay of about 20 hours to the lodgment of the FIR. If for the sake of arguments, it is believed that he was available with the complainant and the deceased at the time of incident then he ought to have disclosed the name of the appellant through the complainant in his FIR, it was not done, therefore, subsequent disclosure of the name of the appellant by him by way of his 161 Cr.P.C statement with delay of about 20 hours to actual incident has made him to be untrustworthy witness. On asking, he was fair enough to admit that SSP Muqadas Haider intimated him that Rangers have arrested the accused and have solved the case. It is contrary to the record, which prima facie suggests that the appellant was arrested by police. No Ranger personnel who as per P.W Zain actually solved his case, has been examined by the prosecution. It was stated by I.O/Inspector Muhammad Iqbal that on arrest, the appellant admitted before him his guilt. If for the sake of arguments, it is believed that such admission was actually made by the appellant before said I.O/Inspector, even then same could not be used against him as evidence in terms of Article 39 of the Qanun-e-Shahadat Order, 1984. It was further stated by the said I.O/Inspector that the appellant then led to recovery of unlicensed pistol from Memon Masjid side, Khori Garden, it was found to be matched with four empties allegedly secured from the place of incident. Obviously the place of recovery of unlicensed pistol was not in exclusive possession of the appellant, therefore, such recovery, if so is made is to be judged with doubt. If for the sake of arguments, it is believed that such recovery has actually been made from the appellant even then same could not be treated to be a conclusive proof to make the appellant guilty for the alleged incident, which the prosecution otherwise has not been able to prove against him beyond shadow of doubt by way of direct evidence. It was further stated by the said I.O/Inspector that he obtained the swabs from the mouth of the appellant through I.O/SIP Ayaz Ali, for its matching with the bud of cigarette secured from the place of incident through DNA test. On asking, it was stated by I.O/SIP Ayaz Ali that the swabs from the mouth of the appellant were taken by him for DNA examination without his consent. He even otherwise was not an expert to have obtained such swabs. Almost every memo introduced in the present case through I.O/Inspector Muhammad Iqbal, as per him, was prepared by Munshi. If it was so, then the performance of said I.O/Inspector with regard to investigation of the present case was only to the extent of table. In these circumstances, it could be concluded safely that the prosecution has not able to prove its case against the appellant beyond shadow of doubt and to such benefit he too is found entitled.

6.         In case of Abdul Khaliq vs. the State (1996 SCMR 1553), it was observed by Hon’ble Court that;

“----S.161---Late recording of statements of the prosecution witnesses under section 161 Cr.P.C. Reduces its value to nil unless delay is plausibly explained.”

 

7.         In case of Muhammad Jamil vs. Muhammad Akram and others            (2009 SCMR 120), it has been held by the Hon’ble Apex Court that;

When the direct evidence is disbelieved, then it would not be safe to base conviction on corroborative or confirmatory evidence.

8.         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”.

 

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.       Case law which is relied upon by learned Addl. P.G for the State and learned counsel for the complainant/ legal heirs of the deceased is on distinguishable facts and circumstances; therefore, the same hardly support their contentions.

11.       In view of facts and reasons discussed above, the conviction and sentence awarded to the appellant by way of impugned judgment are set-aside, consequently, he is acquitted of the charge, he shall be released forthwith, if is not required to be detained in any other custody case.

12.       Above are the reasons of short order dated 11.02.2023, whereby the instant appeal was allowed.

JUDGE

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