IN THE HIGH COURT OF SINDH, AT KARACHI

 

Criminal Appeal No. 352 of 2019

  

                                                       

 

Appellants:                   Muhammad Imran @ Babloo and Noman @ Danish @ Lapari through Mr. Gul Faraz Khan Khattak advocate

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The State:                      Through Mr. Khadim Hussain, Additional Prosecutor General Sindh

 

Date of hearing:           06.09.2022

 

Date of judgment:        06.09.2022

 

 

J U D G M E N T

 

IRSHAD ALI SHAH, J- It is alleged that the appellants during course of robbery, committed murder of Abdul Malik by causing him fire shot injury, for that they were booked and reported upon. After due trial, they for an offence punishable under Section 302(b) PPC were convicted and sentenced to undergo rigorous imprisonment for life and to pay compensation of Rs.200,000/- each to the legal heirs of the said deceased by learned IV-Additional Sessions Judge, Karachi East vide judgment dated 25.05.2019, which is impugned by the appellants before this Court by preferring the instant appeal.

2.         It is contended by the learned counsel for the appellants that it was unseen incident and the appellants have been involved in this case falsely by the police at the instance of the complainant party on the basis of identification parade through the managed witnesses; the crime weapons have been foisted upon the appellants and they have been acquitted in those cases and evidence of the prosecution being doubtful in its character has been believed by learned trial Court without lawful justification, therefore, the appellants being innocent are entitled to be acquitted 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 has sought for dismissal of instant appeal by contending that the appellants are real culprits of the incident and they have rightly been convicted by learned trial Court on the basis of identification parade and recovery of crime weapons from them.

4.         Heard arguments and perused the record.

5.         Admittedly complainant Anees Ahmed is not an eye witness of the incident, therefore, his evidence could hardly lend support to the case of prosecution. It was night time incident and very case at one moment was disposed of by police under “A” Class being untraceable. The appellants on arrest in some other case, during course of interrogation, allegedly admitted their guilt in present case before the police, the complainant and his brother Abdul Sajid. If it is believed to be so, even then such admission on part of the appellants being inadmissible in evidence under Article 39 of Qanun-e-Shahadat Order, 1984 could hardly be relied upon. On arrest from the appellants, it is said were secured the crime weapons, one  which is said to have been recovered from appellant Muhammad Imran  alias Babloo on forensic examination was allegedly found matched with the empty secured from the place of incident, surprisingly such exercise was taken with delay of about 05 days. No explanation to such delay is offered. None has been examined by the prosecution to prove the safe custody of crime empty. The appellants are said to have been acquitted in cases relating to recovery of unlicensed crime weapons from them and no appeal against their acquittal as per learned Addl. P.G for the state has been preferred. In that situation the appellants could hardly be connected with such recovery. P.Ws Farhad Shah and Rehan have claimed to be eye witnesses of the incident, their 161 Cr.P.C statements, as per IO SIP Muhammad Rafiq were recorded on 01.05.2014, it was on 3rd day of incident. No explanation to such delay has been offered by the prosecution, which has raised reasonable doubt about their being eye witness to the incident. The appellants have been subjected to identification parade through P.Ws Farhad Shah and Rehan, on 10th day of their arrest. No explanation to such delay is offered. On the contrary, it was admitted by the complainant that the appellants were shown to him and his brother Abdul Sajid by the police at police station after their arrest. If it was so, then possibility of disclosing the descriptions of the appellants by the complainant to P.Ws Farhad Shah and Rehan could not be ruled out. No specific role in commission of incident even otherwise was ascribed to any of the appellant by P.Ws Farhad Shah and Rehan during course of their identification parade. Muhammad Rafiq and Laiq-uz-Zaman, who have attested the memo(s) of identification parade have not been examined by the prosecution for no obvious reason. In these circumstances, the identification parade of the appellants could reasonably be judged with doubt.

6.         The discussion involved a conclusion that the prosecution has not been able to prove its case against the appellants beyond reasonable doubt and to such benefit they are found entitled.

7.         In case of Abdul Khaliq vs. the State (1996 SCMR 1553), it has been held by Hon’ble apex 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.”

 

8.         In case of Shafqat Mehmood and others vs. The State (2011 SCMR 537), it has been held by the Hon’ble Apex Court that;

“Witnesses had not described the role of each accused played by him in the occurrence, while identifying him, which was an inherent defect making the identification parade of no value and unreliable. Delay of seven days in holding the identification parade after the arrest of accused had made the same doubtful”.

 

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.       In view of above, the conviction and sentence awarded to the appellants by way of impugned judgment are set-aside, consequently, they are acquitted of the offence for which they were charged, tried and convicted by learned trial Court and they shall be released forthwith, if not required to be detained in any other custody case.

11.       The instant appeal is disposed of accordingly.

JUDGE