IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Appeal No. S- 108 of 2016.
Deedar Chandio. .. . ...Appellant.
Versus
The State. .. .. ... Respondent.
Mr. Habibullah G. Ghouri, Advocate for appellant.
Raja Imtiaz Ali Solangi, A.P.G.
Date of hearing: 11.05.2018.
Date of judgment: 11.05.2018.
J U D G M E N T
Amjad Ali Sahito, J: The present appeal is directed against the judgment dated 29.10.2016 passed by learned Additional Sessions Judge-V, Shikarpur, in Sessions Case No.78 of 2015, Re; St. v. Deedar, arisen out of Crime No.33 of 2015, registered with Police Station Mian-Jo-Goth (District Shikarpur); whereby the appellant was convicted for offence under Section 23 (1) (a) of the Sindh Arms Act, 2013, and sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs.25000/- and in case of non-payment of fine to suffer S.I for three months. However, he was extended benefit of Section 382-B Cr.P.C.
2. The appellant Deedar Chandio had been brought to trial by the prosecution on the allegations that on 27.09.2015 at 1430 hours near village Laique Shah link road, Deh Qutib Kato, he was apprehended by police party headed by ASI Muhammad Yousif Chandio of P.S Mian-Jo-Goth, who secured one unlicensed T.T pistol of 30-bore alongwith magazine containing four live bullets and cash of Rs.50/- from his possession in presence of witnesses, namely, PC Ali Gohar and PC Kashmore. On completion of investigation, the appellant was sent for trial.
3. 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 I.O of the case SIP Saeed Ahmed Aghani at Ex.4; he produced FSL report at Ex.4-A. Complainant ASI Muhammad Yousif at Ex.5; he produced memo of arrest and recovery and copy of F.I.R at Ex.5-A and Ex.5-B. PW/ Mashir Ali Gohar was examined at Ex.6; he produced memo of site inspection at Ex.6-A. The learned ADPP for the State closed the side of prosecution, vide statement Ex.7.
5. The statement of appellant/ accused was recorded under Section 342 Cr.P.C at Ex.8, 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 defense.
6. After hearing the parties, the trial Court passed the impugned judgment, 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 at the trial is not properly assessed and evaluated by the trial Court and the evidence is insufficient to warrant conviction of the appellant because the entire evidence was full of contradictions, as well as self-contradictory on very material and crucial points. Learned counsel pointed-out such contradictions in the statements. 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 some important and vital contradictions in the evidence of the prosecution witnesses who are the police officials. Lastly, he has prayed for setting-aside the impugned judgment and acquittal of the appellant.
8. Raja Imtiaz Ali Solangi, Assistant Prosecutor General has supported the impugned judgment passed by the trial Court by submitting that the learned trial Court has rightly convicted and appellant and there is no legal irregularity and illegality in the impugned judgment and that the contradictions, if any, in the evidence of witnesses are minor in nature.
9. I have considered above contentions of the learned counsel for the appellant and learned Assistant Prosecutor General and have gone through the entire evidence very carefully.
10. All the prosecution witnesses examined at trial are police personnel and no any independent person has been cited or examined by prosecution, as according to contents of mashirnama there was no private persons available on the spot, though in his cross-examination the complainant has admitted in his cross-examination that village Laique Shah is situated near the link road where traffic remained present and that it is correct to suggest that at the time of incident traffic was running on the link road, whereas PC Ali Gohar has also admitted in his cross-examination that village Laique Shah is situated adjacent to the link road, there are about 15/20 houses of different communities situated at village Laique Shah. As per evidence of witnesses, the appellant was arrested in the day time, when he ran in the fields near a link road; in day time usually the people remained available in routine business of life in fields and roads, as such it is hard to believe that at that time there was no private witness available at the spot. I am of the view that either a private witness ought to be associated, or some convincing reasons should be given for non-associating a private witness, but no cogent reason has been given.
11. Perusal of evidence of witnesses reflects that it is not only in contradiction to each other, but it is also self-contradictory. As per contents of F.I.R and the mashirnama the appellant was seen and captured by police at 1430 hours, whereas P.C Ali Gohar in his cross-examination has deposed that we noticed the accused at about 1200 hours; we captured the accused at about 1500 hours. The complainant in F.I.R has mentioned that during patrolling when they reached link road near village Laiq Shah, they saw a person standing on road, who on seeing police tried to escape, but in his examination-in-chief the complainant has deposed that I was informed by PC Bashir Ahmed that he has seen the accused who was standing in front of us and disclosed that he is wanted in murder case. The complainant in his cross-examination has deposed that I do not remember the season of crop but the land where from we captured the accused was open ground, whereas PC Ali Gohar has deposed that, at the time of incident there was wheat crop season and that we captured the accused inside the wheat crop, meaning thereby that the wheat-crop was standing there, but complainant has said that it was open ground. Per evidence of complainant, PC Kashmir was the first person who captured the accused, but PC Ali Gohar has deposed that, I myself was the first person who captured the accused. The complainant in his examination-in chief deposed that memo of arrest and recovery was written by WHC Allah Wadhayo Meerani who was also accompanied with us, however PC Ali Gohar has contradicted complainant on this point by deposing that memo of arrest and recovery was prepared by ASI Muhammad Yousif (complainant) while in standing position at the back side of the vehicle. This witness has also denied the fact of presence of WHC Allah Wadhayo Meerani with them on the date and time of alleged incident, so also the contents of the F.I.R and mashirnama do not disclose presence of the WHC Allah Wadhayo with the complainant party; the F.I.R mentions that the police party was consist of complainant ASI Muhammad Yousif, PC Ali Gohar, PC Kashmir, PC Bashir Ahmed and driver PD Ghulam Hussain. The complainant has deposed that accused was under custody of we all the police personnel at the time of writing of memo, but PW Ali Gohar has deposed that at the time of writing of memo accused was under my custody and pistol was under the custody of PC Kashmore. Perusal of mashirnama shows time of its preparation at 1500 hours, but complainant has deposed in his cross-examination that we left place of incident at about 1500 hours. This sole fact proves that the entire case is cooked up at police station.
12. The above evidence of the prosecution witnesses does not appear to be trustworthy and inspiring confidence because it is not only full of contradictions but as well as self-contradictory on very material and crucial points and prove the case of prosecution as doubtful.
13. In the circumstances, discussed above, I am of the considered view that the prosecution has failed to prove its case against the 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 Honble 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.
14. For the foregoing reasons and discussion, I have come to the conclusion that the case of prosecution against appellant is not free from doubt, therefore, instant criminal appeal was allowed, vide short order dated 11.05.2018 and the impugned judgment dated 29.10.2016 was set-aside. Appellant Deedar son of Muhammad Khan Chandio was acquitted from the charge. These are the reasons of my short order.
JUDGE