THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 55 of 2018

Criminal Appeal No. 58 of 2018

Criminal Appeal No. 59 of 2018

Appellants: Moosa Jan, Hashim Ali and Yasir Khan through M/s Abida Parveen, Syed Bashir Ahmed Shah and Naveed Anjum advocates

The State: Through Ms. Seema Zaidi, Additional Prosecutor General Sindh

Date of hearing: 22.09.2022

Date of judgment: 22.09.2022

J U D G M E N T

IRSHAD ALI SHAH, J- The appellants and co-accused Muhammad Azeem, Muhammad Hussain and Zahid Khan were charged for having committed murder of Abid Khan, during course of robbery of his cell phone, when was travelling in a Mazda minibus, for that they were booked and reported upon. After due trial, co-accused Muhammad Azeem, Muhammad Hussain and Zahid Khan were acquitted while the appellants were convicted under Section 302 PPC and were sentenced to undergo imprisonment for life and to pay fine of Rs.50,000/- and in default whereof to undergo simple imprisonment for 06 months without specifying under which clause of Section 302 PPC, they were convicted; they were further convicted under Section 397 PPC and sentenced to undergo imprisonment for 07 years and to pay fine of Rs.25,000/- and in default whereof to undergo rigorous imprisonment for 06 months, which always to be simple, all the sentences were ordered to run concurrently with benefit of section 382-B Cr.P.C, by learned XIth-Additional Sessions Judge, Karachi South, vide judgment dated 28.12.2017, which is impugned by the appellants before this Court by preferring separate appeals.

2. It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely at the instance of the complainant party on the basis of defective identification parade and co-accused Muhammad Azeem, Muhammad Hussain and Zahid Khan have been acquitted while the appellants have been convicted on the basis of same evidence by learned trial Court without lawful justification therefore, they are entitled to their acquittal by extending them benefit of doubt. In support of their contentions, they relied upon case of Kamal Din alias Kamala vs. The State (2018 SCMR 577).

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 the instant appeals by contending that the case of appellants is distinguishable to that of acquitted accused. In support of her contentions, she relied upon case of Ghazanfar Ali @ Pappu and another vs. The State (2012 SCMR 215).

4. Heard arguments and perused the record.

5. It was stated by complainant Jahanzeb Khan that on the night of incident he was intimated by PW Abrar that his brother Abid Khan has sustained fire shot injury during course of robbery of his cell phone, when was travelling in a Mazda minibus and has been taken to Ziauddin Hospital; on such information he proceeded to Ziauddin Hospital, there his brother Abid Khan died of such injuries; the incident was reported to the police and his formal statement under Section 154 Cr.P.C was recorded by I.O/SIP Riaz Hussain and dead body of the deceased then was taken to Jinnah Hospital for postmortem. The complainant obviously is not eye witness of incident therefore, his evidence hardly lends support to the case of prosecution. It was stated by I.O/SIP Abdul Haleem Kolachi that at one moment case was disposed of under “A” class, subsequently, he apprehended the appellants and the co-accused (since acquitted) secured from them five pistols, one 7mm rifle and cell phone of the deceased, they were brought at police station Boat Basin and then were subjected to identification parade through P.Ws Abrar Ahmed, Saeed Amin and Iftikhar Ahmed, it was held by Mr. Anwar Ahmed Memon, the Magistrate having jurisdiction, whereby the said witnesses identified the appellants and the co-accused (since acquitted) to be responsible for the above said incident. Obviously the appellants and co-accused (since acquitted) have been subjected to identification parade in one go under single identification memo, which is against the spirit of law. Be that as it may, P.W Abrar being material witness to the incident and identification parade has not been examined by the prosecution, for no obvious reason. The inference which could be drawn of his non-examination under Article 129(g) of Qanun-e-Shahadat Order, 1984 would be that he was not going to support the case of prosecution. P.W Saeed Amin has attempted to support the identification parade. Surprisingly, P.W Iftikhar Ahmed was fair enough to say that the appellants and co-accused (since acquitted) were found handcuffed at the time of identification parade. If it was so, then the identification parade of the appellants and co-accused (since acquitted) was hollow formality, therefore, such identification parade could hardly be relied upon. P.W Gulab Khan being driver of the Mazda minibus, who initially taken the deceased in injured condition to Ziauddin Hospital too has not been examined by the prosecution for no obvious reason. His examination being independent witness was essential to prove the factum of incident, therefore, his non-examination too could not be lost sight of. None has been examined by the prosecution to prove the safe custody of the cell phone, empties, pistols and rifle, therefore, appellants could hardly be connected with such recovery. On the basis of same evidence co-accused Muhammad Azeem, Muhammad Hussain and Zahid Khan have been acquitted while the appellants have been convicted by learned trial Court. 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 too are found entitled.

6. In the case of Gulfam and others vs. The State (2017 S.C.M.R 1189), it has been held by the Hon’ble Apex Court that;

“…Holding of a joint identification parade of multiple accused persons in one go has been disapproved by this Court in many a judgment and a reference in this respect may be made to the cases of Lal Pasand v. The State (PLD 1981 SC 142), Ziaullah alias Jaji v. The State (2008 SCMR 1210), Bacha Zeb v. The State (2010 SCMR 1189) and Shafqat Mehmood and others v. The State (2011 SCMR 537).”

7. In case of Sardar Bibi and others vs. Munir Ahmed and others (2017 SCMR 344), it has been held by the Hon’ble Apex 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”.

8. 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".

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

10. Above of the reasons of short order dated 22.09.2022, whereby the instant appeals were allowed.

JUDGE