IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Jail Appeal No. 140 of 2020

Criminal Jail Appeal No. 55 of 2020

Appellants: Faisal and Azhar @ Radhay through Mr. Qaim Ali Memon advocate

Respondent: The State through Mr. Khadim Hussian, Additional Prosecutor General Sindh

Date of hearing: 12.12.2022

Date of Judgment: 12.12.2022

J U D G M E N T

IRSHAD ALI SHAH, J.- It is alleged that the appellants during course of robbery of cell phone, caused fires shot injuries to Chowdhry Tanveer Ahmed, who eventually died of such injuries at Jinnah Hospital, for that they were booked and reported upon. On conclusion of trial, the appellants were convicted u/s 302(b)/34 PPC and sentenced to undergo life imprisonment and to pay compensation of Rs.300,000/- each to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for 06 months; they were further convicted u/s 397/34 PPC and sentenced to undergo rigorous imprisonment for 07 years and to pay fine of Rs.50,000/- each and in default whereof to undergo simple imprisonment for 03 months; all the sentences were ordered to run concurrently with benefit of section 382(b) Cr.P.C by learned I-Additional Sessions Judge/ MCTC Karachi South, vide judgment dated 20.12.2019, which is impugned by the appellants before this Court by preferring two separate appeals from jail.

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 at the instance of the complainant party and they have been convicted and sentenced by learned trial Court on the basis of misappraisal of evidence. By contending so, he sought for acquittal of the appellants by extending them benefit of doubt.

3. None has come forward to advance arguments on behalf of the complainant. However, learned Addl.P.G for the state by supporting the impugned judgment has sought for dismissal of instant appeals by contending that the prosecution has been able to prove its case against the appellant beyond shadow of doubt.

4. Heard arguments and perused the record.

5. It was stated by complainant Umair Ahmed Chowdhry that 09.01.2015, it was intimated to him by his younger brother that his father Chowdhry Tanveer Ahmed and mother Mst. Zahida when were on walk, were confronted by two unknown culprits at about 10.15 p.m., who besides robbing his father of his cell phone, on resistance, by causing him fire shot injuries, have fled away, he has been taken to Jinnah Hospital, there he has died of such injuries; on such intimation, he went to Jinnah Hospital, there he was asked by police officials to make statement under section 154 Cr.P.C which he made on the next date of incident, it was recorded by I.O/ASI Aqeel Ahmed PS Defence Karachi, it then was formally incorporated into FIR, it was against unknown culprits, it does not contain name of any witness to the incident excepting mother of the complainant, who as per him, was able to identify the culprits. On investigation, P.Ws Muhammad Bilal and Tahir were introduced by the police, with narration that they have seen the culprits at the time of incident. As per I.O/SIP Muhammad Zahoor, both of the appellants were apprehended, from appellant Faisal was secured the unlicensed pistol of 30 bore with magazine containing 03 live bullets of same bore, with its number rubbed, which allegedly was used by him in commission of incident, under memo which was prepared, in presence of PWs/mashmirs ASI Hukumdad and PC Sabir Ali. No independent person was associated to such recovery thought it was effected on spy information, which appears to be significant. The cell phone of the deceased, as per the said I.O/SIP was secured from PW-Farhan. As per him, it was left with him, by appellant Faisal for the purpose of purchase. Be that as it may, the recovery of the cell phone of the deceased, if any, apparently was not from any of the appellant, as such they could hardly be connected with the cell phone of the deceased. It was further stated by the said I.O/SIP that appellant Faisal then was subjected to identification parade through P.Ws Muhammad Bilal and Tahir, it was conducted on 29.01.2015 by Mr. Mumtaz Ali Solangi, the Magistrate having jurisdiction, whereby they identified him to be one of the culprit responsible for causing fire shot injuries to the deceased. Why P.W Mst. Zahida was not called upon to identify appellant Faisal before the Magistrate being wife of the deceased and natural witness to the incident? No explanation to such omission is offered by the prosecution. On asking, P.Ws Muhammad Bilal and Tahir were fair enough to admit that on 23.01.2015, they were called at CRO office and were shown the photographs of the appellants. If it was so, then identification parade of appellant Faisal, through them was nothing but hollow formality. It was night time incident, therefore, identify of appellant Faisal by P.Ws Muhammad Bilal and Tahir with full features even otherwise, could reasonably be judged with doubt. No reason has been assigned by the prosecution, for its failure to conduct identification parade of appellant Azhar @ Radhay. The CCTV recording though obtained by the said I.O/SIP from the place of incident has not been subjected to forensic test; such omission on his part too could not be ignored. 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 Abdul Khaliq vs. the State (1996 SCMR 1553), it was 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.”

7. In the case of Mian Sohail Ahmed and others vs. The State and others (2019 SCMR 956), it has been held by the Hon’ble Apex Court that:

“The witness was fired at first and then the deceased was shot dead, we notice that factors like weapon focus and distance and lighting are visible in this case. The duration of the event has not been specified in the crime report. In this background, it cannot be said with certainty that the visual recognition of the appellants by the complainant on the fateful night was unhindered and unhampered especially when he was fired at first and allegedly saw the occurrence under stress of a threat. Based on the above "estimator variables," possibility of misidentification cannot be ruled out, thereby making it unsafe to place reliance on the identification evidence.”

8. In the 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".

9. 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 not required to be detained in any other custody case.

10. The instant jail appeals are disposed of accordingly.

JUDGE