JUDGMENT SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

Cr. Appeal No.S-122 of 2014.

Noor Muhammad and others. . . . . .Appellants.

Versus.

The State. . . . . . . . .Respondent.

Appellants Noor Muhammad

and others: Through Mr. Nisar Ahmed Durrani, Advocate.

Respondent the State: Through Syed Meeral Shah Deputy Prosecutor General Sindh .

Date of hearing: 14.10.2015.

Date of decision: 21.10.2015.

J U D G M E N T

NAIMATULLAH PHULPOTO, J: Appellants Noor Muhammad, Yar Muhammad, Anwar, Sadiq Ali, Muhammad Umar and Mir Sahib were tried by learned IInd Additional Sessions Judge, Mirpurkhas in Sessions Case No.249/2011 (arising out of Crime No.46/2011, registered at Police Station Mirpur Old, under sections 353, 397, 504, 337-A(i) P.P.C. By judgment dated 30.10.2014, Appellants Anwar and Yar Muhammad were convicted under section 397 and sentenced to 07 years R. I. each; Appellants Anwar, Noor Muhammad, Saddiq Ali and Yar Muhammad were convicted under section 337-A (i) PPC and sentenced to 02 years R.I. each and to pay Daman Rs.5000/- each; Appellants Noor Muhammad, Yar Muhammad, Anwar, Saddiq Ali, Muhammad Umar and Mir Sahib were also convicted under section 353 PPC and sentenced to 02 years R.I. each. All the sentences were ordered to run concurrently.

2. Brief facts of the prosecution case, as disclosed in the F.I.R. are that on 11.11.2011, complainant/PC Krishan Lal was performing his duty alongwith PC Ali Sher at Sim Nala. On the said date, he alongwith PC Ali Sher left Police Picket Sim Nala Sherwah and proceeded towards Police Station Mirpurkhas on the motorcycle. Complainant was carrying his licensed pistol No.10301. When they crossed Jhurbi Mori, they saw two motorcycles parked on the road. It was about 1530 hours. Complainant stopped his motorcycle, where it is alleged that accused, namely, Anwar armed with pistol, Noor Marri armed with pistol, Yaroo Marri and Umar Marri having hatchets in their hands, Mir Marri and Saddiq Marri having lathies in their hands appeared. Accused persons challenged the complainant and PC Ali Sher that they would not be spared. Thereafter, it is alleged that accused Yaroo caused hatchet blow to the complainant and the remaining accused caused lathi and pistol butt blows to him and he fell down. PC Ali Sher requested accused persons for not causing injuries to complainant. Thereafter, the accused robbed the licensed pistol of the complainant, one chain of gold and drove away on their motorcycles. Thereafter, PC Ali Sher brought the complainant at Police Station where F.I.R. was lodged against the accused persons under above referred sections.

3. During investigation, 161 Cr.P.C. statements of the P.Ws. were recorded by ASI Muhammad Luqman. He inspected the place of vardat and then handed over the case papers to the SHO for further investigation. On conclusion of the investigation, challan was submitted against accused before the concerned Court under sections 353, 397, 504 and 337-A(i) P.P.C.

4. Charge against the accused was framed at Ex.2 by learned IInd Additional Sessions Judge, Mirpurkhas under sections 397, 504, 353, 337-A(i) PPC, to which accused pleaded not guilty and claimed trial. Prosecution examined at trial complainant/P.W-1 Krishan Lal at Ex.3, he roduced copy of F.I.R. at Ex.3-A; P.W-2 Ali Sher at Ex.4; P.W-3 Mumtaz Ali at Ex.5, he produced mashirnama of injuries at Ex.5-A, mashirnama of place of incident at Ex.5-B; P.W-4 Dr. Ali Gohar at Ex.6, he produced letter at Ex.6-A and final medical certificate at Ex.6-B; P.W-5 ASI Muhammad Luqman at Ex.7. Thereafter, learned ADPP closed the prosecution side vide statement at Ex.8.

5. Statements of accused were recorded under section 342 Cr.P.C, in which accused claimed false implication in the case and stated that P.Ws. have deposed against them due to enmity. They did not lead any defence and declined to give statement on oath in disproof of prosecution allegations.

6. I have carefully heard learned counsel for the appellants, learned D.P.G. appearing on behalf of the State and perused the evidence minutely.

7. Mr. Nisar Ahmed Durrani, learned counsel for the appellants contended that PC Krishan Lal has not produced roznamcha entry of relevant date. It is argued that there are material contradictions in prosecution evidence. Ocular evidence is contradictory to medical evidence. Complainant and eye-witness have not disclosed as to how they knew appellants before this incident. It is further contended that nothing was recovered from accused. Lastly, it is contended that investigation officer has not been examined by prosecution and accused have been falsely involved in the case due to enmity.

8. Syed Meeral Shah, learned D.P.G. argued that prosecution has proved its case against the accused. As regards to contradictions in prosecution evidence, it is argued that the same are minor in nature. He further argued that non-production of roznamcha entry would not be fatal to prosecution case. He has supported the impugned judgment.

9. In order to prove the injuries sustained by complainant PC Krishan Lal, prosecution has examined Dr. Ali Gohar at Ex.6. He has deposed that on 11.11.2011, he was posted as CMO at Civil Hospital, Mirpurkhas. On the same date, at 05.15 p.m. he received injured Krishan Lal S/o Padmo Ram for his examination, treatment and certificate. He examined the injured and found following injuries on his person:-

1. Lacerated wound 6 cm x .5 cm x skin deep on occipital region (head),

2. Lacerated wound 0.5 cm x 0.5 cm x skin deep on occipital region (head) just parallel to injury No.1.

3. Lacerated wound 4 cm x .5 cm x skin deep on left forehead.

According to the opinion of the Medico Legal Officer, all injuries were Shajjah-e-Khafifa and were caused by hard and blunt substance. Medical Officer produced such certificate before trial Court at Ex.6-B. M.O. was cross-examined by the defence counsel. In the cross-examination, the Doctor has denied the suggestion that he had issued false certificate. It appears that number of injuries and kind of weapon used have not been disputed in the cross-examination. Efficiency and integrity of the Medical Officer have also not been questioned. I, therefore, hold that injured PC Krishan Lal had received injuries as described by the Medical Officer.

10. Now the question arises that who had caused such injuries to injured PC Krishan Lal. It is also to be determined whether the trial Court has appreciated the prosecution evidence according to the settled principles of the law.

11. To prove the point under consideration, prosecution examined complainant PC Krishan Lal P.W-1. He has deposed that on 11.11.2011, he was performing his official duty at Check Post Sherwah. He received a message of superior officer for reaching at Police Station Dilbar Khan Mehar. PC Ali sher was with him at that time. Thereafter, he alongwith PC Ali Sher left on motorcycle and when they reached near Jamaro within the jurisdiction of P.S. Old Mirpur at Mirza Water, where two motorcycles were already parked. It was 3.30 p.m. as soon as complainant Krishan Lal and PC Ali sher arrived there, 06 persons emerged armed with weapons. They were identified by complainant as Anwar and Nooro armed with pistols, Yar Muhammad, Mir and Umar armed with hatchets and Saddiq armed with lathi. Motorcycle of the complainant was forcibly stopped. Thereafter, complainant Krishan has deposed that accused Yar Muhammad caused him hatchet blow, accused Saddiq caused him lathi blow, accused Anwar and Nooro caused him pistol butt blows. Accused Anwar had snatched TT pistol from him and one ring of gold and accused went away. F.I.R. of the incident was lodged by the complainant.

12. In the cross-examination, complainant Krishan Lal has admitted that no roznamcha entry is mentioned in the F.I.R. He has admitted that there is village Imam Ali Panhwar near place of incident. He has also admitted that place of incident is thickly populated area. However, he has denied the suggestion that he had lodged false case against accused because one Shrimati Chandra had embraced Islam and later on married to accused Noor Muhammad alias Noor Marri.

13. PW-2 PC Ali Sher has deposed that on the day of incident he alongwith PC Krishan Lal left Check Post Sherwah on motorcycle. When they reached at Mirza Water at 1530 hours, they saw two motorcycles parked and 06 persons emerged there. They were identified as Noor Muhammad armed with pistol, Anwar armed with pistol, Saddiq and Yar Muhammad alias Yaroo armed with hatchets, Umar and Ameer armed with lathis. He has further deposed that accused Yar Muhammad caused hatchet blow to the complainant, other accused persons caused him pistols butt and lathi blows. Accused Nooro snatched TT pistol from the complainant and Yaroo snatched one ring of gold from him.

14. In the cross-examination he has denied the suggestion that he was deposing falsely. ASI Muhammad Luqman had partly investigated the case. He had registered the F.I.R. and prepared mashirnama of injuries of injured PC Krishan in presence of the mashirs, inspected the place of vardat in presence of mashirs, recorded 161 Cr.P.C. statements of the P.Ws. and handed over investigation papers to the SHO for further investigation. It was entire prosecution evidence, brought on record.

15. After hearing learned counsel for the parties, I have scanned the entire evidence.

16. From perusal of evidence I have come to conclusion that prosecution has failed to prove its case against the appellants for the reasons that complainant PC Krishan Lal has deposed that accused Yar Muhammad caused him hatchet blow, accused Saddiq caused him lathi blow, accused Anwar and Nooro caused him pistols butt blows and accused Anwar snatched TT pistol and one ring of gold from him. But medical evidence is contradictory to the ocular evidence. According to the Medico Legal Officer, complainant had received only three injuries by hard and blunt substance. Complainant deposed that he had also received one hatchet injury, inflicted by accused Yar Muhammad, but it is not reflected from the medical evidence/certificate. Complainant has deposed that remaining accused caused him injuries, but there are only three injuries on his person. Learned D.P.G. has no reply to explain such contradictions between the ocular and medical evidence. Complainant Krishan Lal has further deposed that accused Anwar snatched TT pistol and one ring of gold from him. But on this point, eyewitness PC Ali Sher has deposed that accused Yaroo had snatched one gold ring from him. This material contradiction has also not been explained by the prosecution. It has come on the record that place of incident is situated in a thickly populated area, but not a single person of the locality has been cited or examined by the prosecution at trial. In the cross-examination, plea raised has been raised by the accused that one Shrimati Chandra had embraced Islam and her muslim name is Mst. Amna, who later on married with accused Noor Muhammad alias Noor Marri and complainant Krishan, who is Hindu, has lodged false case against the accused persons for taking the revenge of Shrimati Chandra. Complainant Krishan has mentioned the names of accused persons in F.I.R, but it has not been explained that as to how he knew the accused persons prior to this incident. Source/previous connection has also not been brought on the record. It creates serious doubt in the prosecution case. Second I.O. who completed the investigation has also not been examined by the prosecution before the trial Court for the reasons best known to prosecution. Non-examination of such material witness would be beneficial circumstance for the accused persons. There are also material contradictions in the prosecution case. Complainant in the F.I.R. has stated that accused Anwar snatched his licensed pistol and accused Yaroo snatched chain of gold from him, but at the trial he has stated that his pistol and ring of gold were snatched by accused Anwar. No incriminating article, TT pistol and ring of gold were recovered from any of the appellants during investigation. Moreover, departure entry has not been produced by the complainant PC Krishan in order to satisfy the Court that both police constables had actually left from check post Sherwah and were proceeding towards Police Station at relevant time. It also causes dent in the prosecution case. Prosecution is not in a position to rebut the contentions raised by defence. For the above stated reasons, evidence of eyewitnesses does not inspire confidence. Prosecution case is to be decided on the basis of the evidence available on record. The rules of evidence prescribed the best course to get truth. In criminal cases such higher degree of assurance is required and it is the basic requirement of law that there must be clear and unequivocal proof that the offence was committed by the known persons. Decision in criminal case cannot be based upon mere supposition, but it must rest upon legal grounds established by legal testimony. The rule of oral evidence requires that best available evidence must alone be given, and while dealing with oral evidence probabilities, presumptions and surrounding circumstances shall always be looked into.

17. Keeping in view the above the above principles it is noted that the evidence of above-named eye-witnesses does not inspire confidence. Both eye-witnesses had tried to improve the prosecution’s version. Evidence of police officials in the circumstances of case required independent corroboration, which is lacking in this case. Appellants have been convicted by the trial Court mainly under section 397 PPC and sentenced to 07 years R.I. each. It is mentioned here that section 397 PPC does not create an substantive offence, but it accomplishes sections 392 and 395, P.P.C. In its nature it is a rider to section 394, P.P.C. As held by this Court in the case of Muhammad Ashfaque v. State (1998 P Cr. L J 1486 (Karachi) D.B.

18. Prosecution has failed to prove its case against the appellants/accused beyond any shadow of doubt. The material contradictions in the prosecution case have been dealt with by the trial Court in a very casual manner. The proper mode of appraisal of evidence in this case for the trial Court was to consider the reliability of each prosecution witness/constable separately then to examine the prosecution case as a whole and also to examine the credibility of the prosecution witnesses in juxtaposition with each other. Mere fact that eyewitnesses had no reason to depose falsely against the accused was not sufficient to hold them trustworthy. Mere fact that prosecution witnesses had no direct enmity with the appellants to implicate them falsely does not render their evidence unassailable. Truth or falsity of the statements of the prosecution witnesses largely depends upon the circumstances to accept the prosecution evidence without considering the circumstances would be totally inconsistent with the safe administration of justice. It is a known principle of appreciation of evidence that benefit of all favourable circumstances in the prosecution evidence must got to the accused regardless of whether he has taken such plea or not. Reliance is placed on the case of MUHAMMAD NAWAZ and another v. THE STATE and others (2005 PLD Supreme Court 40). In the present case there are several circumstances, as have already been highlighted above, which create serious doubt in the prosecution case. No doubt, offence with which accused are charged is serious one. The rule for safe administration of criminal justice, is the harsher the sentence, stricter the standard of proof. Therefore, for the purposes of safe administration of criminal justice, some minimum standards of safety are to be laid down so as to strike a balance between the prosecution and the defence to obviate chances of miscarriage of justice on account of exaggeration by the prosecution witnesses at trial. Such minimum standards of safety are even otherwise necessary for safeguarding the fundamental rights of the citizens regarding life and liberty, which cannot be left at the mercy of police officers without production of independent evidence, as in this case no private person has been cited/examined by the prosecution.

19. On overall assessment of entire evidence available in the case and considering the surrounding circumstances, I have come to the conclusion that case against the appellants is highly doubtful. Accordingly, I extend benefit of doubt to appellants/accused and acquit them from the charge. The conviction and sentences recorded against the appellants/accused by trial Court vide judgment 30.10.2014 are set aside. The appellants Noor Muhammad, Saddiq Ali, Muhammad Umar and Mir Sahib are present on bail. Their bail bonds stand cancelled and surety hereby discharged. Whereas, appellants Yar Muhammad and Anwar are in custody. They shall be released forthwith if not required in any other custody case. Consequently, the appeal is allowed.

JUDGE