IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 253 of 2020

Appellant: Saeed Alam through Mr. Saif Ali Akbar, advocate

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

Complainant: Nemo

Date of hearing: 04.03.2023

Date of judgment: 04.03.2023

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 attempted to commit robbery from milk shop of complainant Shoukat Ali, during course whereof committed murder of his son Faizan by causing him fire shot injuries, for that he was booked and reported upon, the appellant denied the charge and prosecution to prove it, examined in all fourteen witnesses and then closed its side; the appellant in his statement recorded under Section 342 Cr.P.C denied the prosecution’s allegations by pleading innocence by stating that he has been involved in the case falsely by police on account of his refusal to pay them bribe; he, however, did not examine anyone in his defence or himself on oath to disprove the prosecution’s allegation. On conclusion of trial, he was convicted u/s 393 PPC and sentenced to undergo rigorous imprisonment for 05 years; he was further convicted u/s 302(b) PPC and sentenced to undergo to imprisonment for life 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; both the sentences were directed to run concurrently with benefit of section 382(b) Cr.P.C by learned 1^st Additional Sessions Judge, Karachi East vide judgment dated 10.02.2020, 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 on the basis of defective identification parade and the evidence of PWs being doubtful in its character has been believed by the learned trial court without lawful justification, therefore, the appellant is entitled to be acquitted by extending him benefit of doubt, which is opposed by learned DPG for the State by contending that the prosecution has been able to prove its case against the appellant beyond shadow of doubt.

3. Heard arguments and perused the record.

4. It was stated by complainant Shoukat Ali that on 21.02.2017 on hearing of fire shot reports, he went to his milk shop, there he came to know that three person(s) came at his milk shop to commit dacoity and then caused fire shot injuries to his son Faizan, who then was shifted to Sindh Government Hospital and then to Jinnah Hospital, there he died of such injuries, his 154 Cr.PC statement to such effect was recorded by I/O SIP Safdar Ali of PS Zaman Town, it was then incorporated into FIR. On asking, he was fair enough to admit he has not seen anyone causing fire shot injuries to his son Faizan; such admission on his part prima facie suggests that he is not eye witness to the incident, therefore, his evidence hardly lend support to the case of prosecution. It was stated by PWs Zeeshan Ali and Rashid Ali that they and the deceased were present at their milk shop, there came three person(s) on motorcycle, two made their entry in their shop while third remained outside of their shop, they were having pistols, one fired at Faizan; on hearing fire shot reports, the public from neighbourhood came, one of the culprit was apprehended, while two made their scape good; the culprit apprehended was beaten to death by the public, while Faizan was shifted first to Sindh Government Hospital and then to Jinnah Hospital; there he died of such injuries. The matter then was reported to the police by the complainant and their 161 Cr.P.C statements were recorded by police, those as per IO/SIP Jamshed Mehmood were recorded on 23.02.2017, it was with delay of about 02 days to FIR even. No plausible explanation to such delay is offered. Nothing has been brought on record, which may suggest that both the above named PWs actually disclosed the descriptions of the appellant and his companions to the police. It was stated by IO/ASI Mumtaz Ali that on 28.02.2017 he apprehended the appellant with unlicensed pistol of 30 bore; during course of inquiry he admitted to have committed the present incident, therefore, his custody was handed over to IO/SIP Jamshed Mehmood for further investigation of the present case. It was stated by IO/SIP Jamshed Mehmood that during course of investigation; the appellant also admitted before him to have committed the present incident. If for the sake of arguments, it is believed that such admission was actually made by the appellant before above said IOs even then same could not be used against him as evidence, in terms of Article 39 of Qanun-e-Shahadat Ordinance, 1984. It was further stated by IO/SIP Jamshed Mehmood that he then arranged the identification of the appellant before Magistrate through PWs Zeeshan Ali and Rashid Ali; it was held on 02.03.2017 by Mr. Muhammad Ali, Magistrate having jurisdiction; it was on the 03^rd day of the arrest of the appellant; it was joint one, whereby both the above named PWs allegedly identified the appellant to be culprit responsible for committing the death of deceased by causing him fire shot injuries. On asking, PW Rashid Ali was fair enough to say that the dummies were of different descriptions. Normally, those ought to have been of same descriptions. On asking, it was stated by IO/SIP Jamshed Mehmood that CCTV cameras were found installed at the place of incident, but were out of order. He in that respect is belied by PW Zeeshan Ali by stating that I.O collected recording of CCTV cameras. Such inconsistency prima facie suggests that a valuable piece of evidence in shape of recording of CCTV cameras was withheld and/or destroyed by the said IO/SIP obviously to deprive the appellant from its lawful benefit. The case property has not been produced at trial for that reason that it was burnt, on account of fire in malkhana. Nothing has been brought on record in shape of road certificate which may suggests that the case property of the present case was actually kept in malkhana at the time when it allegedly was burnt on account of fire there. The appellant had already been acquitted in case of recovery of unlicensed pistol from him which allegedly used by him in commission of incident; his such acquittal has obviously attained finality, therefore, he could hardly be connected with such recovery. In these circumstances, it could be concluded safely that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt and to such benefit he is found entitled.

5. In case of Abdul Khaliq vs. the State (1996 SCMR 1553), it has been 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.”

6. In case of State vs.Sher Zaman and two others (PLD 2005 Karachi 270), it has been held by the Hon’ble Division Bench of this court that;

“Identification test of accused was held after four days of their arrest‑‑‑Such delayed identification test further suffered from infirmity for the reason that it was conducted jointly”

7. 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".

8. 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.

9. Above are the reasons of short order dated 04.03.2023, whereby the instant appeal was allowed.

JUDGE

Nadir*.