IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Crl. Jail Appeal No. S-15 of 2020

Appellant: Sikandar son of Lal Bux bycaste Shaikh.

Through M/s Mehfooz Ahmed Awan and Farhan Ali Shaikh, advocates.

Crl. Jail Appeal No.S-16 of 2020

Appellant: Sajjad son of Ghulam Hussain Mirani.

Through Mr. Ikhlaque Ahmed Baloach, advocate.

Legal heirs of deceased: Through Mr. Sikandar Ali Junejo advocate,

The State: Through Mr. Shafi Muhammad Mahar, Deputy Prosecutor General Sindh

Date of hearing: 27-02-2023

Date of judgment: 27-02-2023.

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellants with one more culprit in furtherance of their common intention committed murder of Muhammad Daniyal Naeem by causing him fire shot injuries and then went away by making aerial firing to create harassment, for that they were booked and reported upon. On conclusion of trial, they were convicted under Section 302(b), 34 PPC as Ta’azir and sentenced to undergo Imprisonment for life and to pay compensation of Rs.500,000/- each 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 IIIrd Additional Sessions Judge/MCTC-II, Sukkur, vide judgment dated 11-02-2020, which is impugned by them before this Court by preferring the two separate jail appeals.

2. It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the police on the basis of defective identification parade and evidence of the P.Ws being doubtful in its character has been believed by learned trial Court without assigning cogent reasons. By contending so, he sought for acquittal of the appellants by extending them benefit of doubt.

3. Learned Deputy Prosecutor General for the state and learned counsel for the legal heirs of the deceased by supporting the impugned judgment have sought for dismissal of instant jail appeals by contending that the prosecution has been able to prove its case against the appellants beyond shadow of doubt.

4. Heard arguments and perused the record.

5. It was stated by complainant Safdar and PW Muhammad Asim that on 05-06-2012 they and PW Muhammad Aamir went to inquire about health of PW Muhammad Hanif, there they were called by the deceased to come to be taken by him on his motorcycle, when they went outside, they found the deceased having quarrel with some persons, who then fired at him and then fled away by making aerial firing to create harassment, he then was taken to the Civil Hospital, Sukkur, there he was declared dead and then they on 06-06-2012 lodged report of the incident. It does not contain the names and descriptions of the culprits involved in the incident, though it was lodged with delay of about one day to the incident. It was stated by I/O SIP Ghulam Murtaza that on 19-06-2012 he apprehended the appellants, after an encounter while third culprits being Muhammad Ali made his escape good; on arrest from them were secured the incriminating pistols and they on inquiry disclosed to him that they have committed death of the deceased. If for the sake of argument, it is believed that the appellants actually made such disclosure before the said I/O SIP; even then same could not be used against them as evidence in terms of Article 39 of Qanoon-e-Shahdat Order, 1984. It was further stated by the said I/O SIP, he then intimated the complainant and witnesses about arrest of the appellants and asked them to attend the Court of IInd Civil Judge & Judicial Magistrate Sukkur for identification of the appellants, which they did, it was conducted by Mr. Shakeel Ahmed, the Magistrate having jurisdiction; it was on 7^th day of arrest of the appellants. No plausible explanation to such delay is offered. However, by way of such identification parade, the complainant and PWs Muhammad Hanif and Muhammad Asim allegedly identified the appellants to be culprits, responsible for death of the deceased without scribing specific role in commission of incident to either of them. Surprisingly, it was joint identification parade, which was to have been conducted individually. I/O ASI Gulshan Ali Mangi, who has conducted much of the investigation of the present case, has not been examined by the prosecution on account of his death, if he actually died before his examination, then the person well conversant with his signature was to have been examined by the prosecution, it has not been done. In that way, the appellants have been prejudiced in their defence seriously. Nothing has been brought on record, which may suggest that the empties secured from the place of incident and the pistols allegedly recovered from the appellants have been subjected to forensic examination. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove its case against the appellants beyond shadow of doubt and to such benefit, they are found entitled.

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

“Delay of seven days in holding the identification parade after the arrest of accused had made the same doubtful”.

7. In case of Kamal Din alias Kamla Vs. The State (2018 SCMR 577), it has been held by Hon’ble Apex Courts that;

“The identification of an accused without reference to the role allegedly played by him during the course of occurrence was shorn any evidentiary value’.

8. In case of Gulfam & another Vs. The State (2017 SCMR 1189), it has been held by Hon’ble Apex Court that;

“The practice of conduction “joint identification parade” of multiple accused persons in one go was not approved.

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. In view of the facts and reasons discussed above, the conviction and sentence awarded to the appellants by way of impugned judgment are set aside, consequently, they are acquitted of the offence with which they were charged, tried, convicted and sentenced by learned trial Court; they shall be released forthwith, if are not required to be detained in any other custody case.

11. The above are the reasons of short order dated 27-02-2023 whereby the instant jail appeals were allowed.

Judge

Nasim/P.A