JAVED SHAUKAT ALI QURESHIversusSTATE OF GUJARAT

                 [2023] 12 S.C.R. 220 : 2023 INSC 829



                           CASE DETAILS

                  JAVED SHAUKAT ALI QURESHI
                                    v.
                         STATE OF GUJARAT
                  (Criminal Appeal No. 1012 of 2022)
                        SEPTEMBER 13, 2023
           [ABHAY S. OKA AND SANJAY KAROL, JJ.]
                            HEADNOTES
      Issue for consideration: Assault by mob, Seven accused were
convicted, including the present appellant-accused no.6, for the offences
punishable u/s. 396 r/w. s.149, s.395 r/w. s.149, s.307 r/w. s.149, s.435
r/w. s.149 and s.201 r/w. s.149 of the IPC. Accused nos. 1, 5 and 13
were acquitted in appeal by the Supreme Court. (a) Whether conviction
of appellant-accused no.6 justifi ed; (b) Whether conviction of accused
no. 2, 3, 4 was justified, when role ascribed to them was that they were
part of mob.
     Evidence – Conviction of appellant-accused no.6 based on sole
testimony of PW-2 – Propriety:
      Held: Considering the nature of the testimony of PW-2, it cannot
be said that the evidence of PW-2 is wholly reliable – The identifi cation
of the appellant for the fi rst time in the Court after a lapse of about
two years becomes doubtful for more than one reason – Firstly, the
appellant was not known to PW-2 – Secondly, the appellant was part of
a large aggressive mob of 50 to 100 people which surrounded the auto-
rickshaw – Thirdly, there was no identifi cation parade held – Fourthly,
there was no time available to PW-2 to note the distinctive features of
the appellant – Hence, it is very unsafe to record a conclusion based only
on the testimony of the solitary witness that the guilt of the appellant
was proved beyond a reasonable doubt – Even if the evidence of PW-2
is categorized as “neither wholly reliable nor wholly unreliable,” the
appellant cannot be convicted only based on the sole testimony of
PW-2 unless there is a corroboration to the version of PW-2 either by
                                   220
 JAVED SHAUKAT ALI QURESHI v. STATE OF GUJARAT                         221


direct or circumstantial evidence – Such a corroboration is completely
absent in this case – Therefore, the conviction of the appellant cannot
be sustained. [Para 8]
     Penal Code, 1860 – Conviction of accused nos. 2, 3, 4 – Propriety:
      Held: The conviction of accused nos. 1, 5 and 13 was based only
on the testimony of PW-25 and PW-26 – The Supreme Court had in
its earlier decision rejected the testimony of PW-25 and PW-26 in its
entirety – Assuming that PW-25 and PW-26 identifi ed accused nos.2, 3
and 4 by stating that they were members of the mob; once a Coordinate
Bench of the Supreme Court discards their testimony in its entirety being
unreliable, the benefit of the said finding will have to be extended to the
accused nos.2, 3, and 4 as they are similarly placed with accused nos.1,5
and 13 – Therefore, the conviction of accused nos.2, 3 and 4 set aside.
[Paras 11, 12 and 14]
    Evidence – Similar or identical evidence of eyewitnesses against
accused persons – Principle of parity:
     Held: When there is similar or identical evidence of eyewitnesses
against two accused by ascribing them the same or similar role, the Court
cannot convict one accused and acquit the other – In such a case, the cases
of both the accused will be governed by the principle of parity – This
principle means that the Criminal Court should decide like cases alike,
and in such cases, the Court cannot make a distinction between the two
accused, which will amount to discrimination. [Para 15]
    Constitution of India – Suo moto exercise of jurisdiction
u/Art.136:
      Held: The testimony of PW-25 and PW-26 was rejected –
Consequent to which, accused nos.1, 5 and 13 were acquitted – The case
of accused nos. 3 and 4 stands on the same footing as accused nos. 1,5
and 13 – They must get the benefi t of parity – Accused nos.3 and 4 did
not prefer any appeal – In the case of Pawan Kumar v. State of Haryana,
Supreme Court dealt with similar contingency in some detail – The Court
held that the jurisdiction under Article 136 of the Constitution of India
can be invoked in favour of the party even suo moto when the Court
is satisfi ed that compelling ground for its exercise exists – However,
222         SUPREME COURT REPORTS                     [2023] 12 S.C.R.


such suo moto power should be used very sparingly with caution and
circumspection – The Court held that the power must be exercised in
the rarest of the rare cases. [Para 16]
      Practice and Procedure:
      Held: Earlier special leave petition fi led by accused no.2 was
summarily dismissed without recording any reasons – The law is well-
settled that an order refusing special leave to appeal by a non-speaking
order does not attract the doctrine of merger – The case of accused no 2
stands on the same footing as accused nos. 1,5 and 13 acquitted by this
Court – The accused no.2 must get the benefit of parity – Therefore, the
order passed in the earlier special leave petition filed by accused no.2
is recalled. [Para 18]
       LIST OF CITATIONS AND OTHER REFERENCES
    Vadivelu Thevar & Anr. v. State of Madras AIR 1957 SC 614 : [1957]
SCR 981; Musa Khan & Ors. v. State of Maharashtra AIR 1976 SC 2566;
Pawan Kumar v. State of Haryana (2003) 11 SCC 241 : [2003] 1 Suppl.
SCR 710; Harbans Singh v. State of U.P. & Ors. (1982) 2 SCC 101 : [1982]
3 SCR 235 – relied on.
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.1012 of 2022.
     From the Judgment and Order dated 11.02.2016 of the High Court of
Gujarat at Ahmedabad in CRLA No.736 of 2006.

      Appearances:

     M. Shoeb Alam (Amicus Curiae), Ms. Fauzia Shakil, Ujjwal Singh,
Agastya Sen, Ms. Garima Chaudhry, Advs. for the Appellant.

    Ms. Ruchi Kohli, Ms. Swati Ghildiyal, Ms. Devyani Bhatt, Ms. Srishti
Mishra, Advs. for the Respondents.
 JAVED SHAUKAT ALI QURESHI v. STATE OF GUJARAT                         223



         JUDGMENT / ORDER OF THE SUPREME COURT
                              JUDGMENT
     ABHAY S. OKA, J.
     FACTUAL ASPECTS
      1. The occurrence based on which the appellant was convicted was
    th
of 7 November 2003. According to the prosecution case, around 10
a.m. on that day, about 1,000 to 1,500 people had gathered in the Shah
Alam area of the city of Ahmedabad. When PW-1 Baldev was passing
through that area by his two-wheeler, the crowd stopped him. He was
forced to disclose his identity. After he disclosed his identity, the crowd
started assaulting him and his two-wheeler was burnt. Thereafter, the
crowd stopped an auto-rickshaw, and the passengers in the auto-rickshaw
were forced to alight. The necklace of PW-2 Gitaben Bhailal, who was a
passenger in the auto rickshaw, was snatched. The mob assaulted PW-3
Hemubhai, who was carrying LPG cylinders on a bicycle. PW-13 Ajay
was passing through that area on his two-wheeler with Mukesh as a pillion
rider. PW-13 Ajay managed to run away. However, Mukesh was assaulted
by the mob. Afterwards, the dead body of Mukesh was found in a nearby
lake. A total of 13 accused were prosecuted. Accused nos. 1 to 6 and 13
were convicted and Trial Court acquitted the rest of the accused. Seven
accused were convicted, including the present appellant-accused no.6, for
the offences punishable under Section 396 read with Section 149, Section
395 read with Section 149, Section 307 read with Section 149, Section 435
read with Section 149 and Section 201 read with Section 149 of the Indian
Penal Code, 1860 (for short ‘IPC’). The maximum sentence imposed was
life imprisonment for the offence punishable under Section 396 read with
149 of IPC. By the impugned judgment, while confirming the conviction
of the accused, the High Court brought down the sentence to 10 years. The
appeals preferred by the convicted accused were decided by a Division
Bench of the High Court by the impugned judgment.
    2. The appellant is accused no.6. Accused nos.1, 5 and 13 preferred
Criminal Appeal no.1041 of 2016 to this Court. By the judgment dated 9 th
August 2018, this Court acquitted the said three accused. SLP (Crl.) Dy.
No.13063 of 2018 filed by the accused no.2 was summarily dismissed vide
224           SUPREME COURT REPORTS                         [2023] 12 S.C.R.


order dated 11th May 2018. Accused nos.3 and 4 did not prefer any appeal
for challenging the judgment of the High Court.
      SUBMISSIONS
      3. Learned counsel appointed as Amicus Curiae to espouse the cause
of the appellant pointed out that only one witness, namely, PW-2 Gitaben
identified the appellant and ascribed him a role of pulling her gold chain. He
submitted that PW-2 did not know the appellant. Therefore, her identification
of the appellant in the Court becomes doubtful as even according to her
version; there were 50-100 persons in the mob which surrounded the auto-
rickshaw by which the witness was travelling. Moreover, the witness deposed
before the Court approximately two years after the occurrence of the crime.
He pointed out that the test identification parade was not held.
      4. He submitted that as an officer of the Court, it is his duty to point out
that accused nos.3 and 4 were convicted only on the basis of the testimony
of PW-25 and PW-26. He submitted that the same is the case with accused
no 2. He submitted that while deciding Criminal Appeal no. 1041 of 2016
preferred by the accused nos.1, 5 and 13, this Court has completely discarded
the testimony of both PW-25 and PW-26. He would, therefore, submit that
not only that the appellant deserves to be acquitted, but the benefit of the
judgment may be extended to accused nos. 2, 3 and 4 as well.
      5. The learned counsel appearing for the respondent urged that PW-2
has clearly identified the appellant and has ascribed the role of snatching her
gold chain to him. She submitted that time of only two years had elapsed
between the date of occurrence and the date of deposition of PW-2, and
therefore, it was easily possible for PW-2 to identify the appellant. She
submitted that PW-2, being a woman, would never forget the face of the
accused who had snatched the gold chain from her neck. She submitted that
as far as accused nos.2,3 and 4 are concerned, their conviction has become
final and cannot be interfered with.
      OUR VIEW
      6. Firstly, we deal with the case of the appellant. PW-25 (Arif Khan)
and PW-26 (Sachinbhai Patel), who are alleged to be the eyewitnesses, are
the police constables. Both of them claimed that at the time of the incident, a
mob of about 1000-1,500 people had gathered at the spot where the incident
    JAVED SHAUKAT ALI QURESHI v. STATE OF GUJARAT                          225
                       [ABHAY S. OKA, J.]

took place. Going by the impugned judgments, only PW-2 Gitaben has
identified the appellant and has ascribed a specific role of chain snatching to
him. Thus, as far as the appellant is concerned, PW-2 is the solitary witness.
PW-2 stated in the examination-in-chief that there were six passengers in
the auto-rickshaw by which she was travelling. After seeing the mob near
Shah Alam Gate, the driver stopped the auto-rickshaw and fled away. She
stated that a mob surrounded the auto-rickshaw. She also stated that the
members of the mob belonged to the Muslim community. She stated that
two people sitting in the front seat of the auto-rickshaw were pulled out.
She could not get out of the auto-rickshaw. She stated that someone pulled
her gold chain from her neck, which was nearly weighing 10 grams. She
stated that she was slapped and that she received injuries caused by a nail.
She specifically stated that there were 50-100 people in the mob present
around the auto-rickshaw, and she did not identify anyone from the mob.
When her attention was invited to the accused present in the Court, she stated
that one of them was present in the mob. The witness signalled toward one
accused. The Trial Court has noted that the said accused was told to stand
up who disclosed his name as Javed. Thereafter, the witness stated that the
said accused pulled the chain from her neck. In the cross-examination, she
accepted that no test identification parade was held. It must be noted here that
no other prosecution witness has identified the appellant. The witness stated
that a mob of around 50-100 people had gathered around the auto-rickshaw.
It is not the case of the prosecution that she knew the appellant beforehand.
Going by her version of the incident, there was no time available to her to
observe the distinctive features of the appellant. The incident of snatching
must have been over in seconds. Therefore, it is very difficult to accept that
in such a large mob gathered around the auto-rickshaw, the witness could
remember the face of only one accused and recognise him after a lapse of
about two years from the date of the incident.
     7. In a given case, the conviction can be based on the testimony of only
one eyewitness. The law has been laid down on this behalf by a Bench of three
Hon’ble Judges of this Court in the case of Vadivelu Thevar & Anr. v. State of
Madras1. In paragraphs 10,11 and 12 of the said decision, this Court held thus:



1    AIR 1957 SC 614
226              SUPREME COURT REPORTS                       [2023] 12 S.C.R.


      “10. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..
      On a consideration of the relevant authorities and the provisions of
      the Evidence Act, the following propositions may be safely stated as
      firmly established:
      (1) As a general rule, a court can and may act on the testimony
      of a single witness though uncorroborated. One credible witness
      outweighs the testimony of a number of other witnesses of
      indifferent character.
      (2) Unless corroboration is insisted upon by statute, courts should
      not insist on corroboration except in cases where the nature of the
      testimony of the single witness itself requires as a rule of prudence,
      that corroboration should be insisted upon, for example in the
      case of a child witness, or of a witness whose evidence is that of
      an accomplice or of an analogous character.
      (3) Whether corroboration of the testimony of a single witness is or
      is not necessary, must depend upon facts and circumstances of each
      case and no general rule can be laid down in a matter like this and
      much depends upon the judicial discretion of the Judge before whom
      the case comes.
      11. In view of these considerations, we have no hesitation in holding
      that the contention that in a murder case, the court should insist
      upon plurality of witnesses, is much too broadly stated. Section 134
      of the Indian Evidence Act, has categorically laid it down that “no
      particular number of witnesses shall, in any case, be required for the
      proof of any fact”. The legislature determined, as long ago as 1872,
      presumably after due consideration of the pros and cons, that it shall
      not be necessary for proof or disproof of a fact, to call any particular
      number of witnesses. In England, both before and after the passing of
      the Indian Evidence Act, 1872, there have been a number of statutes as
      set out in Sarkar’s Law of Evidence — 9th Edn., at pp. 1100 and 1101,
      forbidding convictions on the testimony of a single witness. The Indian
      Legislature has not insisted on laying down any such exceptions to
      the general rule recognized in Section 134 quoted above. The section
      enshrines the well recognized maxim that “Evidence has to be weighed
JAVED SHAUKAT ALI QURESHI v. STATE OF GUJARAT                          227
                    [ABHAY S. OKA, J.]

  and not counted”. Our Legislature has given statutory recognition to
  the fact that administration of justice may be hampered if a particular
  number of witnesses were to be insisted upon. It is not seldom that a
  crime has been committed in the presence of only one witness, leaving
  aside those cases which are not of uncommon occurrence, where
  determination of guilt depends entirely on circumstantial evidence.
  If the legislature were to insist upon plurality of witnesses, cases
  where the testimony of a single witness only could be available
  in proof of the crime, would go unpunished. It is here that the
  discretion of the presiding judge comes into play. The matter
  thus must depend upon the circumstances of each case and the
  quality of the evidence of the single witness whose testimony has
  to be either accepted or rejected. If such a testimony is found by
  the court to be entirely reliable, there is no legal impediment to
  the conviction of the accused person on such proof. Even as the
  guilt of an accused person may be proved by the testimony of a single
  witness, the innocence of an accused person may be established on the
  testimony of a single witness, even though a considerable number of
  witnesses may be forthcoming to testify to the truth of the case for the
  prosecution. Hence, in our opinion, it is a sound and well-established
  rule of law that the court is concerned with the quality and not with
  the quantity of the evidence necessary for proving or disproving a
  fact. Generally speaking, oral testimony in this context may be
  classified into three categories, namely:
  (1) Wholly reliable.
  (2) Wholly unreliable.
  (3) Neither wholly reliable nor wholly unreliable.
  12. In the first category of proof, the court should have no difficulty in
  coming to its conclusion either way — it may convict or may acquit
  on the testimony of a single witness, if it is found to be above reproach
  or suspicion of interestedness, incompetence or subornation. In the
  second category, the court equally has no difficulty in coming to its
  conclusion. It is in the third category of cases, that the court has
  to be circumspect and has to look for corroboration in material
  particulars by reliable testimony, direct or circumstantial. There is
228           SUPREME COURT REPORTS                         [2023] 12 S.C.R.


      another danger in insisting on plurality of witnesses. Irrespective of the
      quality of the oral evidence of a single witness, if courts were to insist
      on plurality of witnesses in proof of any fact, they will be indirectly
      encouraging subornation of witnesses. Situations may arise and do arise
      where only a single person is available to give evidence in support
      of a disputed fact. The court naturally has to weigh carefully such a
      testimony and if it is satisfied that the evidence is reliable and free
      from all taints which tend to render oral testimony open to suspicion,
      it becomes its duty to act upon such testimony. The law reports contain
      many precedents where the court had to depend and act upon the
      testimony of a single witness in support of the prosecution. There are
      exceptions to this rule, for example, in cases of sexual offences or of
      the testimony of an approver; both these are cases in which the oral
      testimony is, by its very nature, suspect, being that of a participator
      in crime. But, where there are no such exceptional reasons operating,
      it becomes the duty of the court to convict, if it is satisfied that the
      testimony of a single witness is entirely reliable. We have therefore, no
      reasons to refuse to act upon the testimony of the first witness, which
      is the only reliable evidence in support of the prosecution.”
                                                            (emphasis added)
      8. Considering the nature of the testimony of PW-2, it cannot be said that
the evidence of PW-2 is wholly reliable. The identification of the appellant for
the first time in the Court after a lapse of about two years becomes doubtful for
more than one reason. Firstly, the appellant was not known to PW-2. Secondly,
the appellant was part of a large aggressive mob of 50 to 100 people which
surrounded the auto-rickshaw. Thirdly, there was no identification parade
held. Fourthly, there was no time available to PW-2 to note the distinctive
features of the appellant. Hence, it is very unsafe to record a conclusion based
only on the testimony of the solitary witness that the guilt of the appellant
was proved beyond a reasonable doubt. Even if we categorise the evidence
of PW-2 as “neither wholly reliable nor wholly unreliable,” the appellant
cannot be convicted only based on the sole testimony of PW-2 unless there
is a corroboration to the version of PW-2 either by direct or circumstantial
evidence. Such a corroboration is completely absent in this case. Therefore,
the conviction of the appellant cannot be sustained.
 JAVED SHAUKAT ALI QURESHI v. STATE OF GUJARAT                            229
                       [ABHAY S. OKA, J.]

      9. Now, coming to the role of accused nos.2,3 and 4, we must note
here that the only role ascribed to them was that they were a part of the mob.
No overt act was ascribed to them. The Trial Court believed the testimony
of PW-25 (Arifkhan) and PW-26 (Sachinbhai Patel). Both PW-25 and PW-
26 identified accused no.2. However, a test identification parade was not
conducted.
      10. As far as accused no.3 is concerned, he was identified by PW-26
as a member of the mob. After having perused the testimony of PW-25,
we find that he has not specifically named accused no.3. Accused no.4 was
not identified by PW-26, but the finding of the Trial Court is that he was
identified by PW-25.
      11. The conviction of accused nos. 1, 5 and 13 was based only on the
testimony of PW-25 and PW-26. The test identification parade as regards
accused nos.1 and 5 was not held, but as regards accused no.13, the test
identification parade was conducted. While dealing with appeals preferred
by accused nos.1,5 and 13, in paragraph 5, this Court held thus:
     “On a careful consideration of the evidence adduced by PWs-25
     and 26, we are left with serious doubt as to whether the evidence
     of the said two witnesses should inspire the confidence of the
     Court. Identification of a total of 13 accused, who were sent out
     for trial including present accused-appellants, in a mob of 1000-
     1500 people is by no means an easy task. Over and above that no
     Test Identification Parade was held so far as accused Nos.1 and 5
     are concerned. The prosecution has not offered any explanation as to
     why no Test Identification Parade was held in respect of A-1 and A-5
     whereas a Test Identification Parade was held in respect of A-13.”
                                                           (emphasis added)
     12. This Court was of the view that evidence of PW-25 and PW-26
does not inspire confidence. This Court did not partially reject the testimony
of PW-25 and PW-26 but rejected their testimony in its entirety.
      13. As Section 149 of IPC was applied, this Court dealt with the theory
of the prosecution based on the fact that accused nos.1,5 and 13 were present
in the mob. This Court relied upon what is held in paragraph 5 of its decision
230            SUPREME COURT REPORTS                         [2023] 12 S.C.R.


in the case of Musa Khan & Ors. v. State of Maharashtra2. Paragraph 5 of
the said decision reads thus:
       “5. The appellants pleaded innocence and averred that they had been
       falsely implicated due to enmity and had not participated in the riot.
       Both the courts below have accepted the main facts leading to the
       occurrence as also participation of the appellants in the rioting. The
       Additional Sessions Judge as also the High Court, however, do not
       appear to have made a correct approach in examining the individual
       cases of the accused, particularly with reference to their actual presence
       or participation in the incident in question. It is true that having
       regard to the background against which the events took place all the
       incidents starting from the National Hotel and ending with the chawl
       of Jogendra Singh were parts of the same transaction, nevertheless they
       were separate incidents in which different members of the mob had
       participated. In these circumstances, therefore, without there being any
       direct evidence about the actual participation of the appellants in all
       the incidents it could not be inferred as a matter of law that once the
       appellants were members of the mob at the National Hotel, they must be
       deemed to have participated in all the other incidents at the Engineering
       College Hostel, Bharat Lodge and the chawl of Jogendra Singh. It is
       well settled that a mere innocent presence in an assembly of persons,
       as for example a bystander, does not make the accused a member of
       an unlawful assembly, unless it is shown by direct or circumstantial
       evidence that the accused shared the common object of the assembly.
       Thus, a court is not entitled to presume that any and every person
       who is proved to have been present near a riotous mob at any time
       or to have joined or left it at any stage during its activities is in law
       guilty of every act committed by it from the beginning to the end,
       or that each member of such a crowd must from the beginning have
       anticipated and contemplated the nature of the illegal activities in
       which the assembly would subsequently indulge. In other words,
       it must be proved in each case that the person concerned was not
       only a member of the unlawful assembly at some stage, but at all



2     AIR 1976 SC 2566
    JAVED SHAUKAT ALI QURESHI v. STATE OF GUJARAT                        231
                         [ABHAY S. OKA, J.]

      the crucial stages and shared the common object of the assembly
      at all these stages. Such an evidence is wholly lacking in this case
      where the evidence merely shows that some of the accused were
      members of the unlawful assembly at one particular stage but not
      at another. In these circumstances, therefore, the accused who were
      not present or who did not share the common object of the unlawful
      assembly at other stages cannot be convicted for the activities of the
      assembly at those stages. In view of this error committed by the High
      Court it has become necessary for us to examine the evidence on the
      limited question as to which of the accused had actually participated
      in the incidents at the Engineering College, Bharat Lodge and the
      chawl of Jogendra Singh where acts of incendiarism had taken place.
      It is also common ground that the occurrence had taken place at night
      and the evidence of the witnesses identifying the accused had to be
      examined with great caution.”
                                                          (emphasis added)
      14. Assuming that PW-25 and PW-26 identified accused nos.2, 3 and
4 by stating that they were members of the mob; once a Coordinate Bench
of this Court discards their testimony in its entirety being unreliable, the
benefit of the said finding will have to be extended to the accused nos.2,3
and 4 as they are similarly placed with accused nos.1,5 and 13. Moreover,
except for PW-25 and PW-26, no other witnesses have ascribed any role to
the accused nos.2, 3 and 4.
      15. When there is similar or identical evidence of eyewitnesses against
two accused by ascribing them the same or similar role, the Court cannot
convict one accused and acquit the other. In such a case, the cases of both
the accused will be governed by the principle of parity. This principle means
that the Criminal Court should decide like cases alike, and in such cases,
the Court cannot make a distinction between the two accused, which will
amount to discrimination.
     16. As far as accused nos.3 and 4 are concerned, they did not prefer any
appeal. In the case of Pawan Kumar vs. State of Haryana3, this Court dealt


3    (2003) 11 SCC 241
232          SUPREME COURT REPORTS                         [2023] 12 S.C.R.


with similar contingency in some detail. This Court held that the jurisdiction
under Article 136 of the Constitution of India can be invoked in favour of
the party even suo moto when the Court is satisfied that compelling ground
for its exercise exists. However, such suo moto power should be used very
sparingly with caution and circumspection. The Court held that the power
must be exercised in the rarest of the rare cases.
       17. Accused nos. 1,5 and 13 were convicted only on the basis of the
testimony of PW-25 and PW-26. They were acquitted by holding that the
testimony of both witnesses was unreliable and deserved to be discarded. If
the same relief is not extended to accused nos. 3 and 4 by reason of parity,
it will amount to violation of fundamental rights guaranteed to accused nos.
3 and 4 by Article 21 of the Constitution of India. Therefore, we have no
manner of doubt that the benefit which is granted to accused nos. 1,5 and 13
deserves to be extended to accused nos.3 and 4, who did not challenge the
judgment of the High Court. In this case, the suo motu exercise of powers
under Article 136 is warranted as it is a question of the liberty of the said
two accused guaranteed by Article 21 of the Constitution.
      18. Now, we come to the case of accused no.2. By the order dated 11 th
May 2018, a special leave petition filed by accused no.2 was summarily
dismissed without recording any reasons. The law is well-settled. An order
refusing special leave to appeal by a non-speaking order does not attract
the doctrine of merger. At this stage, we may refer to a three-judge Bench
decision of this Court in the case of Harbans Singh v. State of U.P. & Ors.4.
In paragraph 18, this Court held thus:
      “18.To my mind, it will be a sheer travesty of justice and the
      course of justice will be perverted, if for the very same offence,
      the petitioner has to swing and pay the extreme penalty of death
      whereas the death sentence imposed on his co-accused for the very
      same offence is commuted to one of life imprisonment and the life
      of the co-accused is shared (sic spared). The case of the petitioner
      Harbans Singh appears, indeed, to be unfortunate, as neither in his
      special leave petition and the review petition in this Court nor in
      his mercy petition to the President of India, this all important and


4     (1982) 2 SCC 101
 JAVED SHAUKAT ALI QURESHI v. STATE OF GUJARAT                             233
                       [ABHAY S. OKA, J.]

     significant fact that the life sentence imposed on his co-accused in
     respect of the very same offence has been commuted to one of life
     imprisonment has been mentioned. Had this fact been brought to
     the notice of this Court at the time when the Court dealt with the
     special leave petition of the petitioner or even his review petition,
     I have no doubt in my mind that this Court would have commuted
     his death sentence to one of life imprisonment. For the same offence
     and for the same kind of involvement, responsibility and complicity,
     capital punishment on one and life imprisonment on the other would
     never have been just. I also feel that had the petitioner in his mercy
     petition to the President of India made any mention of this fact of
     commutation of death sentence to one of life imprisonment on his
     co-accused in respect of the very same offence, the President might
     have been inclined to take a different view on his petition.”
                                                            (emphasis added)
      19. We have found that the case of accused no 2 stands on the same
footing as accused nos. 1,5 and 13 acquitted by this Court. The accused
no.2 must get the benefit of parity. The principles laid down in the case of
Harbans Singh4 will apply. If we fail to grant relief to accused no 2, the
rights guaranteed to accused no. 2 under Article 21 of the Constitution of
India will be violated. It will amount to doing manifest injustice. In fact, as
a Constitutional Court entrusted with the duty of upholding fundamental
rights guaranteed under the Constitution, it is our duty and obligation to
extend the same relief to accused no.2. Therefore, we will have to recall the
order passed in the special leave petition filed by accused no.2.
     20. Before we part with the judgment, we must record our
appreciation of the service rendered by Mr. M. Shoeb Alam, Advocate
as Amicus Curiae.
     21. Accordingly, the appeal succeeds and we pass the following order:
     a.    The appellant, accused no.6–Javed Shaukat Ali Qureshi, is
           acquitted of the offences alleged against him by setting aside the
           judgment of the Trial Court dated 17th March 2006 and judgment
           of the High Court dated 11th February 2016 to the extent. He is
           on bail. His bail bonds stand cancelled;
234            SUPREME COURT REPORTS                      [2023] 12 S.C.R.


      b.    We set aside the order of conviction of accused no.3 Mehboobkhan
            Allarakha and accused no.4 Saidkhan @ Anna Ikbalhusain by
            setting aside the same judgments to that extent and acquit them
            of the offences alleged against them. They shall be forthwith set
            at liberty if they are not required to be detained in connection
            with any other case;
      c.    We recall the order dated 11th May 2018 in SLP (Crl.) Diary
            No.13063 of 2018 and grant leave. For the reasons set out above,
            accused no. 2 Amjadkhan Nasirkhan Pathan stands acquitted by
            setting aside the impugned judgment of the Trial Court and the
            High Court to that extent. He shall be forthwith set at liberty
            unless he is required to be detained in connection with any other
            offence; and
      d.    The appeal is allowed on the above terms.


Headnote prepared by:                                           Appeal allowed.
Ankit Gyan