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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