THE HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Jail Appeal No. 18 of 2020

Before:

Mr. Justice Mohammad Karim Khan Agha

Mr. Justice Irshad Ali Shah

Appellant: Asif Iqbal through Mr. Muhammad Farooq advocate

Respondent: The State through Mr. Muhammad Iqbal Awan Additional Prosecutor General Sindh

Complainant: Najeebullah Khan through Mr. Iftikhar Ahmed Shah advocate

Date of hearing: 06.10.2021

Date of announcement: 08.10.2021

J U D G M E N T

IRSHAD ALI SHAH, J- The appellant by preferring the instant Jail Appeal has impugned judgment dated 18.03.2019, rendered by learned Judge, A.T.C No. XVI, Karachi, whereby the appellant allegedly for committing murder of Irfan Khan and causing fire shot injuries to P.W Dawood Khan was convicted and sentenced to various terms spreading over life imprisonment with fine as is detailed in the impugned judgment.

2. The facts in brief necessary for disposal of the instant Special Criminal Anti-Terrorism Jail Appeal are that complainant Najeebullah Khan together with his brothers Dawood Khan and Irfan Khan were travelling in a car when reached adjacent to Paradise Bakery at Abul Hassan Isfahani Road, Karachi, they were allegedly fired at by the appellant and absconding accused and then made their escape good on their two motorcycles, as a result of such firing, Irfan Khan lost his life while Dawood Khan sustained fire shot injuries, for that the present case was registered.

3. At trial, the appellant did not plead guilty to the charge and prosecution to prove it, examined complainant Najeebullah Khan and his witnesses and then closed its side.

4. The appellant in his statement recorded u/s 342 Cr.P.C denied the prosecution’s allegations by pleading innocence by stating that he has been involved in this case on account of political rivalry and at the instance of police. However, the appellant neither examined himself on oath nor anyone in defence to prove his innocence.

5. On evaluation of evidence so produced by the prosecution, learned trial court convicted and sentenced the appellant by way of impugned judgment.

6. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the complainant party at the instance of police and political rivals; that the FIR has been lodged with unexplained delay of about two days; that the appellant has been introduced in the case after one year of the incident; that no identification parade of appellant has been held before Magistrate and nothing has been brought on record which may suggest that PW Dawood Khan has actually sustained fire shot injuries during the course of alleged incident and the evidence which has been brought on record by the prosecution has not been appraised properly by learned trial court, therefore, the appellant is liable to his acquittal of the charge by extending him benefit of doubt. In support of his contentions, he has relied upon the cases of Syed Saeed Muhammad Shah and another vs. The State (1993 SCMR 550), Imran Ashraf and 7 others vs. The State (2001 SCMR 424), Sajid Mumtaz and others vs. Basharat and others (2006 SCMR 231), Ghulam Shabbir Ahmed and another vs. The State (2011 SCMR 683), Haider Ali and others vs. The State (2016 SCMR 1554), Javed Khan alias Bacha and another vs. The State and another (2017 SCMR 524), Majeed alias Majeedi and others vs. The State and others (2019 SCMR 301), Mian Sohail Ahmed and others vs. The State and others (2019 SCMR 956) and Muhammad Sharif and 2 others vs. The State and others (2020 SCMR 1818).

7. It is contended by learned Addl. P.G for the State and learned counsel for the complainant that the appellant is neither innocent nor is involved in this case falsely; that the delay in lodgment of FIR is explained plausibly; that the appellant was identified by the complainant and P.W Dawood Khan during course of their examination before learned trial court correctly, therefore, the identification parade of the appellant under supervision of Magistrate was not essential and the evidence brought on record by the prosecution has rightly been appraised by learned trial court, therefore, the appeal of the appellant is liable to be dismissed. In support of their contentions, they have relied upon the cases of Solat Ali Khan vs. The State (2002 SCMR 820), Muhammad Akram Rahi and others vs. The State and others (2011 SCMR 877), Ghazanfar Ali @ Pappu and another vs. The State (2012 SCMR 215), Rafaqat Ali and others vs. The State (2016 SCMR 1766) and Kanwar Anwar Ali, Special Judicial Magistrate (PLD 2019 SC 488).

8. We have considered the above arguments and perused the record.

9. The incident has taken place on 05.12.2010, the FIR whereof is lodged by the complainant on 07.12.2010, it is with delay of about two days to the incident, such delay having not been explained plausibly could not be ignored.

10. In case of Mehmood Ahmed & others vs. the State & another (1995 SCMR127), it was observed by the Hon’ble court that;

“Delay of two hours in lodging the FIR
in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate”.

11. Even otherwise, the FIR of the incident so lodged by the complainant is not containing the name and description of the appellant. No one from the locality has been examined by the police which may suggest that the incident had actually taken place adjacent to Paradise Bakery at Abul Hassan Isfahani Road, Karachi. The deceased and injured as per the complainant firstly were taken by him to Patel Hospital through a Rickshaw. No Rickshaw driver is examined by the police. The car wherein the alleged incident had taken place has never been produced at trial. Statement of P.W Dawood Khan under section 161 Cr. P.C has not been recorded by the police, for the reason that he was unfit to make such statement. If PW Dawood Khan was unfit to make his statement u/s 161 Cr.P.C, being injured then it was to have been recorded by the police when he became fit to make such statement. In absence of his such statement he could hardly be treated as a witness to the incident. Even otherwise, nothing has been brought on record by the prosecution in shape of memo of injuries or medical certificate, which may suggest that PW Dawood Khan has actually sustained the fire shot injuries allegedly at the hands of appellant and others during course of the present incident. IO/Inspector Niaz Muhammad was fair enough to admit that the memo of recovery of empties from the place of incident and Section 154 Cr.P.C statement of the complainant were recorded by Munshi. His name he was not able to disclose, which has led us to conclude that it was an act of table investigation on his part. As per IO Inspector Bhanal Shah the very case at one moment was recommended by him to be cancelled under A-Class. As per IO/SIP Iftikhar Ahmed the appellant was apprehended on 27.10.2011, it was with delay of about 10 months to the actual date of incident. On arrest, as per him, the appellant confessed his guilt before him. If for the sake of arguments, it is believed to be so, even then it could not be used against appellant as evidence in terms of mandate contained by Article 38 of the Qanun-e-Shahadat Order, 1984. No recovery of any sort has been made from the appellant even after his arrest. No effort was undertaken by the I.O SIP Iftikhar Ahmed to have arranged identification parade of the appellant through the complainant and PW Dawood Khan under the supervision of the Magistrate, which is appearing to be surprising. As said above, the description of appellant were not disclosed by the complainant in his FIR or by any of his witness before the police, therefore, his identity by the complainant and his witnesses in first sight, during course of their examination before learned trial court after eight years was not enough to connect him with commission of incident and/ or to say that it is not enough to be relied upon.

12. In the case of Sohail Abbas and others vs. Kashif and others (PLD 2001 S.C 546), it has been held by Honourable Apex court that;

“There is nothing available on record to indicate why identification parade of the accused persons was not held. Admittedly they were not known to the witnesses and in such circumstances if identification parade is not held, it becomes virtually impossible, in absence of any other evidence, to connect, with the alleged occurrence. The witnesses in their statements under section 161, Cr.P.C. did not mention the features of the accused persons nor other description like height and weight. They saw the accused for the first time in Court after about 2 years. In such circumstances, their asserting that the accused are the same who had committed the murder, no importance can be attached to it in the absence of any identification parade.”

13. The conclusion which we have drawn from the above discussion is that the prosecution has not been able to prove the involvement of the appellant in the present case beyond shadow of doubt and to such benefit the appellant is found entitled.

14. 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".

15. The case law which is relied upon by learned Addl. P.G for the state and learned counsel for the complainant is on distinguishable facts and circumstances. In those cases, the accused involved mostly were subject to identification parade conducted by Magistrate. In the instant case no identification parade of the appellant has been conducted before the Magistrate.

16. In view of the facts and reasons discussed above, the conviction and sentence awarded to the appellant by way of impugned judgment are set aside, consequently, the appellant is acquitted of the offences for which he has been charged, tried and convicted by the learned trial court, he shall be released forthwith in present case, if he is not required to be detained in any custody case.

17. The instant Special Criminal Anti-Terrorism Jail Appeal is disposed of accordingly.

JUDGE

JUDGE

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