THE HIGH COURT OF SINDH AT KARACHI

 

Criminal Appeal No. 498 of 2019

Confirmation Case No. 20 of 2019

 

Before:                                                      

Mr. Justice Mohammad Karim Khan Agha

Mr. Justice Irshad Ali Shah

 

Appellant:                                        Muhammad Rashid Bhatti through Mr. Waqar Alam advocate

Respondent:                                     The State through Mr. Ali Haider Saleem Additional Prosecutor General Sindh

Date of hearing:                              16.09.2021

Date of announcement:                24.09.2021

 

J U D G M E N T

IRSHAD ALI SHAH, J- It is the case of the prosecution that the appellant and co-accused Muhammad Kashif with one more culprit in furtherance of their common intention not only committed murder of Altaf Hussain by causing him fire shot injuries but also caused fire shot injury to complainant Deepak with intention to commit his murder too for that they were booked and reported upon by the police.

2.       At trial, the appellant and co-accused Muhammad Kashif denied the charge and prosecution to prove it, examined complainant Deepak and his witnesses and then closed its side.

3.       The appellant and co-accused Muhammad Kashif in their statements recorded under Section 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 examined none in their defense or themselves on oath.

4.       On evaluation of evidence, so produced by the prosecution, the learned 1st Additional Sessions Judge, East Karachi/MCTC acquitted co-accused Muhammad Kashif while convicted the appellant for offence punishable under Section 302(b) PPC for committing death of Altaf Hussain and sentenced him to death with fine of Rs.500,000/- payable to the legal heirs to the said deceased as compensation and in case of default in payment whereof, to undergo simple imprisonment for six months vide judgment dated 19.09.2019, which is impugned by the appellant before this Court by preferring the instant appeal. It is pertinent to mention here that no conviction was awarded to the appellant for having committed an offence punishable under Section 324 PPC. A reference was also made by learned trial Court for confirmation of death sentence to the appellant.

5.       The appeal preferred by the appellant and reference made by learned trial Court now are being disposed of by this Court through the instant 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 police; that the FIR of the incident has been lodged with delay of one day and the statements of the P.Ws under Section 161 Cr.P.C have been recorded with further delay of ten days even to FIR; that co-accused Muhammad Kashif has already been acquitted while the appellant on the basis of same evidence has been convicted by learned trial Court without assigning cogent reasons for doing so, therefore, the appellant is also entitled to his acquittal by extending him benefit of doubt. In support of his contentions, he has relied upon the cases of Muhammad Nadeem alias Banka vs. The State (2011 SCMR 1517), Ghulam Mustafa vs. The State (2009 SCMR 916), Noor Muhammad and another vs. The State (2008 SCMR 69), Muhammad Hussain and another vs. The State (1993 SCMR 1614), Muhammad Ashraf vs. The State and others (2019 P.Cr.L.J 353), Mukhtiar Hussain vs. The State (2017 MLD 745), Abdul Waheed vs. Umar and 2 others (2013 P.Cr.L.J 192), Muhammad Afzal vs. The State (1999 MLD 2445) and Khamiso and another vs. The State (1981 P.Cr.L.J 1049).

7.       Learned Addl. P.G for the state by supporting impugned judgment has sought for dismissal of the instant appeal and confirmation of the death sentence to the appellant by contending that the prosecution has been able to prove its case against the appellants by bringing on record reliable and confidence inspiring evidence on ocular and factual premises. In support of his contention, he has relied upon the cases of Muhammad Ehsan vs. The State (2006 SCMR 1857), Arif vs. The State and 2 others (PLD 2006 Peshawar 5), Niaz-ud-Din and another vs. The State and another (2011 SCMR 725), Fazal Akbar and another vs. The State through AAG and another (2013 P.Cr.L.J 369), Daddullah and another vs. The State (2015 SCMR 856) and Arbab Ali and another vs. The State (2016 P.Cr.L.J 01).

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

9.       As per the prosecution, the incident has taken place on 24.04.2013 at about 2145 hours. As per IO/SIP Sagheer Ahmed he recorded 154 Cr.P.C statement of complainant Deepak on 25.04.2013 at about 0045 hours, it was with delay of about one day to the incident. No plausible explanation to such delay is offered by the prosecution.  It has come on record that 161 Cr.P.C statements of the P.Ws/eye witnesses Aneel Kumar and Tamseel Ahmed have been recorded on 04.05.2013. It was with delay of ten days even to FIR. No plausible explanation to such delay has been furnished by the prosecution, therefore, the evidence of the said witnesses on account of above said delay in recording of their 161 Cr.P.C statements could hardly be relied upon to base conviction. It has been inter-alia stated by the complainant Deepak that on the date of incident, when he, deceased and the said witnesses were traveling through a car, there came appellant and others out of them appellant resorted to firing as a result of such firing beside deceased he also sustained fire shot injury on his left arm and then with the deceased he was taken to JPMC Hospital Karachi, for treatment, there came I.O/SIP Sagheer Ahmed and he recorded his 154 Cr.P.C statement. Be that as it may, it is inter-alia stated therein by the complainant that the deceased sustained fire shot injury at the hands of appellant on his abdomen, while he sustained fire shot injury at the hands of appellant at his left arm. The complainant is belied in that respect by postmortem report, wherein it is stated that the deceased was found sustaining fire shot injury at his chest. Dr. Jaleel Qadir who actually has conducted postmortem on the dead body of the deceased could not be examined by the prosecution on account of his death. The benefit of his non-examination obviously could be extended to the appellant. The car whereby the complainant and deceased together with the said witnesses were traveling at the time of incident have not been produced at trial by the prosecution for no obvious reasons. Nothing has been brought on record by the prosecution in shape of memo of injury sustained by the complainant or medical certificate which may suggest that the complainant had actually sustained fire shot injury at his left arm at the hands of appellant at the time of the incident together with the deceased. In absence of such proof/document, the presence of the complainant at the time of incident has become doubtful and it may be the reason for recording his statement under Section 154 Cr.P.C with delay of about one day. On arrest, from the appellant it is alleged that the police has secured an unlicensed pistol of 30 bore. For such recovery, however it has come on record that the appellant has already been acquitted by the Magistrate having jurisdiction. Even otherwise, it was the pistol, other than the one which had allegedly been used in commission of incident. In that situation the appellant could hardly be connected with such recovery.

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.     In case of Abdul Khaliq vs. the State (1996 SCMR 1553), it was observed by Hon’ble Court that;

 

“It is a settled position of law that late recording of 161, Cr.P.C statement of a prosecution witness reduces its value to nil unless there is plausible explanation for such delay.”

 

 

12.     In case of Sardar Bibi and others vs. Munir Ahmed and others (2017 SCMR-344), it was held by the Hon’ble 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”. 

 

 

13.     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".

 

 

14.     The case law which is relied upon by learned Addl. P.G for the state is on distinguishable facts and circumstances. In the case of Muhammad Ehsan (supra) it was held by Honourable Apex court that the conviction could be maintained on solitary evidence, if it is found to be unimpeachable and confidence inspiring. In the instant case the evidence of the eye witnesses is not found to be confidence inspiring. In case of Arif (supra), accused took plea of substitution with real culprit which was found by the Peshawar High Court to be rare. In the instant case the appellant has not taken the plea of substitution. In case of Niazuddin (supra), determination of dying declaration made by the deceased was involved. In the instant case no issue of dying declaration was involved. The case of Fazal Akbar (supra) is relating to recovery of unlicensed weapon. The instant case is involving the determination of death of a person. The case of Dadullah (supra) involves the determination of confessional statement made by accused before a Magistrate. In the instant case no confessional statement is made by the appellant before Magistrate, which could be determined.  In case of Arbab Ali and others (supra) issue of death during course of robbery was involved and identity of the accused the prosecution was able to prove through identification parade. In the instant case no identification parade of the appellant has been conducted.

15.     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. The Reference is answered in Negative.

16.     The instant appeal and Reference are disposed of accordingly.

                                                         

                                                                    JUDGE

 

                                                          JUDGE   

 

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