IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Appeal No. S-  110 of 2017.

Mehboob son of Pir Bux Dasti.                                     .…..…...Appellant.

Versus

The State.                                                             …..…Respondent.

          Mr. Zafar Ali Malgani, Advocate for appellant.

          Mr. Sharafuddin Kanhar, A.P.G.

          Date of hearing:             13.04.2018.

          Date of judgment:          13.04.2018.

JUDGMENT

Amjad Ali Sahito, J:    The present appeal is directed against the judgment dated 09.12.2017 passed by the learned Additional Sessions Judge-II, Mehar, convicting the appellant for offences punishable under Section 24 of the Sindh Arms Act, 2013, arisen out of F.I.R No.27/2017 of P.S B-Section Mehar, in Sessions case No.139/2017. The trial Court convicted and sentenced appellant to undergo R.I for four (04) years with fine of Rs.5000/- and in case of default in payment of fine to suffer S.I for three months. However, benefit of Section 382-B Cr.P.C was extended to the appellant.

2.       The appellant Mehboob Dasti was brought to trial by the prosecution on the allegation that that 05.02.2017, he was apprehended alongwith unlicensed DBBL gun by the police party headed by complainant SIP Qadir Bux after an encounter with police, which was reported as Crime No.26/2017 with same police station.

3.       On completion of usual investigation, the challan was filed by sending the appellant for trial. The learned trial Court framed the charge against appellant at Ex.02, to which he pleaded not guilty and claimed to be tried.

4.       In order to prove the charge against the appellant, the prosecution examined PW-1 complainant SIP Qadir Bux at Ex.4, he produced attested copy of roznamcha entry No.13 at Ex.4-A; carbon copy of memo of arrest and recovery at Ex.4-B; arrival entry No.15 at Ex.4-C and F.I.R at Ex.4-D. PW-2 ASI Muhammad Paryal, who also acted as mashir, was examined at Ex.5. The learned ADPP for the State closed the side of prosecution, vide statement Ex.6.

5.       The statement of appellant/ accused was recorded under Section 342 Cr.P.C at Ex.7, in which he denied the allegations of the prosecution leveled against him. He claimed his innocence and false implication in this case. He neither examined himself on oath nor led any sort of evidence in his defence.

6.       After hearing the parties, the trial Court passed the impugned judgment dated 09.12.2.2017, in which the appellant/ accused was convicted as above, who has filed the instant criminal appeal.

7.       Learned counsel for the appellant has argued that the judgment passed by the trial Court is much against the law, facts and equity and liable to be set-aside; that the trial Court has failed to appreciate the factual as well as legal aspects of the case while convicting the appellant. He next argued that the evidence adduced by the prosecution and the documents i.e. mashirnama and roznamcha entry produced at the trial are not properly assessed and evaluated by the trial Court and the evidence which is consist of police witnesses is in-sufficient to warrant conviction of the appellant. It is further contended by learned counsel that the trial Court has erred in concluding that the alleged recovery was effected from the accused in the mode and fashion described by the prosecution and that there are many important and vital contradictions in the evidence of the prosecution witnesses, as such their evidence cannot be relied upon and cannot be made basis of conviction and sentence. Lastly, he has prayed for setting-aside the impugned judgment and acquittal of the appellant.

8.       Mr. Sharafuddin Kanhar learned Assistant Prosecutor General has supported the impugned judgment passed by the trial Court.

9.       I have considered above contentions of the learned counsel for the appellant and A.P.G. and have gone through the entire evidence very carefully.

10.     Both the prosecution witnesses are police personnel and no any independent person has been cited or examined by prosecution as mashir, though the alleged incident is said to have taken place near fish-ponds and mashirnama of inspection of place of incident shows that place of vardat is situated near fish ponds of Niaz Buriro, there is a link road leading to Mehar town in its northern side, there is land of said Niaz Buriro in its western directions, where there is another link road leading towards village Ghaari. The location of the place of vardat shows that it is an open and busy place, where presence of the independent persons cannot be ruled out. The appellant was shown to be arrested in the day time from a common, open and busy place, when people remained available in routine business of life as such it is hard to believe that at that time there was no private person present. I am of the view that either a private witness ought to be associated, or some convincing reason should be given for non-associating a private witness. No doubt, the evidence of the police officials is as good as other witnesses, but when the whole case rests upon sole evidence of police officials, their evidence requires deep scrutiny.

11.     Record reveals that, as per F.I.R the alleged incident took place at 2000 hours; the complainant SIP Qadir Bux has also affirmed this fact in his deposition that at 2000 hours they reached at the spot and encounter started, which continued for about five minutes, then the police party apprehended one of the culprits in injured condition; recovered weapon and conducted his personal search and recovered some cash amount and thereafter made enquiry from him and then prepared mashirnama. Definitely, all this process must had taken sufficient time, but the mashirnama shows time of its preparation, to be the 2010 hours, means that all this process of apprehending accused, making his body search and recovering weapon and inquiry from him was completed within five minutes . This sole fact proves that the entire case is cooked up at police station and proves the case of prosecution as doubtful. This also proves that the evidence brought on record by prosecution against appellant is not trustworthy and inspiring confidence.

12.     Furthermore, no any report of ballistic expert is produced in the instant case by the prosecution about its mechanism and working condition; this aspect of the case also creates doubt in the case of prosecution.

13.     It further reveals that the mode of recovery of gun from the appellant is also dubious, as according to mashirnama of arrest & recovery and per contents of FIR, the appellant surrendered while sitting on ground and gun was lying by his side, but the complainant SIP Qadir Bux in his deposition has deposed that he secured gun. Moreover, complainant SIP Qadir Bux in his deposition is silent about the fact that the gun was sealed on the spot or not. Since, the mode of recovery of gun is dubious; therefore happening of the instant incident is questionable.

14.     Moreover, it is the case of prosecution that the accused was apprehended on spot in injured condition and he was brought to hospital for medical examination and treatment. But, no such medical certificate has been brought on record; nor any medical officer in this regard has been examined. This fact of non-examination of medical officer and non-production of the medical certificate proves the defence plea of the appellant/ accused that he was arrested by police from his house and caused bullet injury and booked in case of fake police encounter, to be correct.

15.     Record reveals that, the complainant SIP Qadir Bux has also acted as Investigating Officer of the case and as per mashirnama of inspection of place of vardat; the I.O visited the place of vardat on next date i.e. 06.02.2017 and recovered seven empty cartridges and seventeen empty shells. In the circumstances, it is not understandable and hard to believe that after lapse of one day, the empty cartridges and shells remained available at place of vardat, which is an open and accessible place for everyone.  It is also not acceptable to a prudent mind that, when complainant acted as investigation officer, then why he did not collect the empty cartridges/ shells on the same day. This fact also proves that the entire case is cooked-up at police station.

16.     It is the case of prosecution and has come on the record that encounter continued for about five minutes, in which five police personnel and three accused were involved and automatic weapons were used and there is nothing on record to show that both the parties had any protection in shape of tree or wall at the place of incident. In such a situation, it is surprising that only one of the culprits received single injury, which too on calf of his leg and the police vehicle was not caused any damage. This fact again makes happening of the instant incident is questionable and doubtful and it again proves defence plea of appellant to be correct.

17.     In the circumstances, discussed above        when the happening of the incident of police encounter has become doubtful and questionable, I am of the considered view that the recovery of crime weapon also become doubtful and questionable. In such view of the matter, the prosecution has failed to prove it’s case against appellant beyond any reasonable doubt and it is well settled principle of law that for creating shadow of doubt, it is not necessary that there should be many circumstances. If a single circumstances creates reasonable doubt in the prudent mind, then its benefit has to be given to the accused not as a matter of grace or concession, but as the matter of right. The reliance is placed on the case of Muhammad Akram v. The State (2009 SCMR 230), wherein the Hon’ble Supreme Court of Pakistan has held that:

“The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as a matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right”.

18.     The learned trial Court has not evaluated the evidence in its true perspective and thus reached to an erroneous conclusion by holding the appellant guilty of the offence. Consequently, the instant appeal is allowed. The conviction and sentence awarded to the appellant is set-aside and he is acquitted of the charge by extending him benefit of doubt.

19.     These are the detailed reasons of my short order dated 13.04.2018.

                                                                JUDGE

Ansari/*