THE HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Jail Appeal No. 352 of 2019

Confirmation Case No. 02 of 2020

Before:

Mr. Justice Mohammad Karim Khan Agha

Mr. Justice Irshad Ali Shah

Appellants: Muhammad Imran @ Bangali andShahid Jameel @ Tariq Chamber through M/s Intikhab Ahmed and Maroof Husssain Hashmi advocates

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

Date of hearing: 08.09.2021

Date of announcement: 10.09.2021

J U D G M E N T

IRSHAD ALI SHAH, J- The appellants by way of instant appeal have impugned judgment dated 26.11.2019, passed by learned Judge, ATC No.VI, Karachi whereby they for allegedly committing murder of Rajab Ali have been awarded death penalty, subject to confirmation by this Court.

2. The appellants denied the charge and the prosecution to prove it, examined complainant Muhammad Sheeraz and his witnesses and then closed its side.

3. The appellants in their statements recorded u/s 342 Cr.P.C denied the prosecution’s allegations by pleading innocence by stating that they have been involved in this case falsely by the police. They did not examine anyone in their defense or themselves on oath in terms of Section 340(2) Cr.P.C.

4. On evaluation of evidence, so produced by prosecution, the appellants have been convicted and sentenced by learned trial Court as is detailed above.

5. It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the police and they have been convicted and sentenced by learned trial Court on the basis of no evidence, therefore, they are entitled to their acquittal by extending them benefit of doubt. In support of their contentions, they relied upon case of Muhammad Yaseen vs. The State (2021 SCMR 404).

6. Learned Addl. P.G for the state by supporting the impugned judgment has sought for dismissal of the instant appeal and confirmation of death sentence to the appellants.

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

8. As per the case of prosecution a gunny bag containing dead body of unknown person was secured by ASI Muhammad Ali of P.S Gulshan-e-Iqbal, Karachi, just outside of the door of Aero Club. Subsequently, it was identified by the complainant to be of his brother Rajab Ali. On medical examination, as per Dr. Afzal Ahmed the deceased was found to have been done to death by way of strangulating his throat. Be that as it may, admittedly none has seen the appellants committing the death of the said deceased. It is alleged that the appellants on arrest made their statements one after other, before ASI Zubair and ASI Farrukh Hussain, admitting their guilt. It was the only evidence which the prosecution was able to collect against the appellants. If for the sake of arguments, it is believed that the appellants have admitted their guilt before the above said police officers, even then such admission on their part could not be used against them as evidence to base conviction in terms of Article 38 of the Qanun-e-Shahadat Order, 1984. In these circumstances, it could be concluded safely 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.

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. For what has been discussed above, the conviction and sentence awarded to the appellants by learned trial Court by way of impugned Judgment are set-aside consequently, they are acquitted of the offence for which they have been charged, tried and convicted by learned trial Court. They shall be released in present case forthwith, if they are not required to be detained in any other custody case.

11. The instant Appeal and Confirmation Reference are disposed of accordingly.

JUDGE

JUDGE