IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Criminal Appeal No. D- 12 of 2015

PRESENT :

Mr. Justice Khadim Hussain Shaikh,

Mr. Justice Amjad Ali Sahito,

Appellant: Abdul Razak Khoso through Mr. Aqeel Ahmed A. Bhutto, Advocate.

Respondent: The State through Mr. Khadim Hussain Khooharo, Addl.PG.

Date of Hearing: 18.04.2018

Date of Judgment:18.04.2018

JUDGMENT

Amjad Ali Sahito –J. This judgment shall dispose of Criminal Appeal No. D- 12 of 2015 filed by appellant Abdul Razak Khoso, against impugned judgment dated 03.02.2015 passed by learned Judge, Anti Terrorism Court, Shikarpur whereby he has convicted and sentenced to suffer imprisonment for life and to pay fine of Rs.100,000/- and in default of payment of fine he shall undergo S.I. for six months more. The benefit of Section 382-B, Cr.P.C is extended to the appellant.

2. The prosecution case, as per F.I.R lodged by complainant Allah Warayo Badani on 01.5.2013 at 1045 hours, is that he was detailed as guard of doctor Muhammad Ibrahim Jatoi Ex.MNA. On the day of incident, Dr.Muhammad Ibrahim Jatoi, President NPP and contesting candidates for constituency NA-202 Shikarpur, Zahid Hussain Pahore, Khan Muhammad @ Khanan Jatoi, Driver Akhtiar Ahmed Panhwar, were in bullet proof vehicle of black colour Pajero Reg. No.BF-4994/Sindh while complainant along with Arbab Unar, Muhammad Alam, Ghulam Shabir, Ghulam Akber Jatoi, Driver Imdad Ali were in double door vehicle Reg. No.KR-9955/Sindh. These vehicles were coming from village and were going towards Shikarpur Bungalow for election work. The vehicle in which doctor Ibrahim was sitting was ahead of vehicle of complainant. When they reached near village Sher Muhammad Brohi near Tool Plaza, they saw five terrorists with open faces on three motorcycles. Out of them two each were on two motorcycles while one was on third motorcycle. One person on one motorcycle came in front of them and dashed with vehicle of Dr. Muhammad Ibrahim. Then there was a big blast. The motorcycle and body of terrorist went into pieces, the rest four unknown culprits ran away on two motorcycles to northern side by the road. In the blast, the vehicle of Dr. Muhammad Ibrahim sustained damage to its front portion wind screen and tyres while the vehicle in which complainant was sitting sustained damage to its wind screen. The police was informed about this incident and then complainant lodged F.I.R. During investigation I.O visited the place of wardat and prepared memo in presence of mashirs Gul Hassan and Gul Baig, secured piece of bomb and motorcycles. He also secured pieces of dead body of terrorist and took figure prints of suicide bomber and prepared memo in presence of same mashirs. He also prepared Danishnama in presence of same mashirs. He recorded 161 Cr.P.C statements of P.Ws, pieces of bomb were sent to Karachi laboratory, figure prints was sent to NADRA for verification, damaged motorcycle was also sent to forensic laboratory, hair and teeth of dead body were sent to Islamabad laboratory for its DNA test. On 10.9.2013 he recorded the further statement of complainant. On 14.09.2013 he arrested the suspected accused from truck stand Shikarpur, prepared memo in presence of mashirs PC Ali Shah and PC Zamir Hussain. On 18.09.2013 he produced the P.Ws Zahid Hussain and Khan before Magistrate for recording their 164 Cr.P.C statements and then submitted the challan before this Court on 26.09. 2013.

3. The copies of documents were supplied to accused as required under section 265-C, Cr.P.C at Ex.01. The N.B.Ws for the arrest of absconding accused could not be executed, such statement of process server ASI Bashir Ahmed was recorded at Ex.02. The proceedings under section 87 Cr.P.C were carried out against the absconding accused, statement of ASI Ahsan Ali was recorded at Ex.03. The proclamation as required under section 19 (10)of Anti Terrorism Act were published in three national newspapers at Ex.04 to 06. In spite of that accused failed to appear, hence he was finally declared as proclaimed offender. Warrants under section 88 Cr.P.C were also received from concerned Mukhtiarkar which were kept on record at Ex.07.

4. On 28.06.2014 Oath was taken by Presiding Officer at Ex.08. The charge against the accused/appellant was framed at Ex.09 to which he pleaded not guilty and claimed trial. Such plea was recorded at Ex.09/A.

5. The prosecution in order to prove its case has examined the following witnesses i.e. PW-1 complainant Allah Warayo at Ex.10, he produced FIR and photographs of damage vehicle at Ex.10-A and 10-B. PW-2 Dr.Abdul Rasheed Abro at Ex.11, he produced Danishnama, post mortem report and photograph of dead body at Ex.11-A to 11-C. P.W-3 IO Lal Bux at Ex.12, he produced certificate from Bomb Disposal Team, memo of place of wardat, Danishnama of dead body, memo of finger prints, letter sent to laboratory for bomb piece, letter for DNA test, forensic report of motorcycle, query report about DNA, data of suicide bomber, photographs of bomber/suicide, technical report of bomb disposal squad, report of chemical examiner , papers of damaged motorcycle and memo of arrest of accused at Ex.12-A to 12-P. P.W-4 Zahid Hussain at Ex.13, he produced 164, Cr.P.C statement of accused at Ex.13-A, PW-5 Khan Muhammad at Ex.14, he produced 164, Cr.P.C statement at Ex.14. PW-6 PC Ali Shah at Ex.15, PW-7 Tapdar Zahid Ali, he produced sketch at Ex.16/A. PW-8 Gul Hassan at Ex.17, PW-9 Dr.Muhammad Ibrahim at Ex.18. Thereafter learned DDPP closed the side of prosecution at Ex.19.

6. The statement of appellant/accused was recorded under section 342, Cr.P.C at Ex.20, wherein he denied the allegation and pleaded innocence. The appellant/accused further stated that police had taken him from Truck Stand much before and was kept under detention and then implicated in this case. The appellant neither examined himself on oath as required under section 342, (2) Cr.P.C to disprove the charge nor examined any witness in his defence.

7. Learned counsel for the appellant submitted that the impugned judgment has been passed by the learned trial court in a slipshod manner without adverting to real facts of the case and material available on record. Learned counsel vehemently contended that the story contained in the crime report does not sound sense. He submitted that admittedly neither name of any accused was given in the F.I.R nor description of any of the accused was mentioned; the complainant and the witnesses are close to each other and their testimony being interested cannot be taken in to consideration and relied upon for awarding conviction without corroboration from any independent and unimpeachable source of evidence. Next argued that there is absolutely no incriminating material on record in order to substantiate that the appellant was notorious or record holder. He further submitted that supplementary statement of the complainant which is delayed for about more than four months has no evidentiary value in the eyes of law. He lastly prayed for setting aside the judgment and acquittal of the appellant.

8. The learned Addl. PG appearing on behalf of the State supported the impugned judgment and submitted that it was a day-light incident and the appellant was accompanied by the suicider/bomber and the seen by the complainant clearly. He further submitted that all the prosecution witnesses while appearing in the witness box fully substantiated the prosecution version by giving minute details of the incident.

9. We have heard the arguments of learned counsel for the appellant, learned Additional Prosecutor General Sindh, Larkana and also gone through the record with their able assistance.

10. Prosecution in order to substantiate its version had adduced evidence in the shape of ocular account, medical evidence, recovery of crime articles/weapons as well as investigation. Bare reading of the F.I.R reveals that appellant was not named in the F.I.R which was lodged against unknown accused persons. No description, like, heights, colours, ages etc. of said accused persons were mentioned in the F.I.R. The appellant was implicated in the case on the further statement of the complainant which was recorded on 10.9.2013 after the delay of more than four months from the day of incident which took place on 01.5.2013. No source of information, as to how the complainant came to know about the name of the appellant was mentioned. It is well settled principle of law that if a witness had improved his statement then he would not be worthy of reliance or any credence. No identification parade of appellant was held in the case and in such a situation holding of identification parade was necessary. Nothing incriminating has been secured from the possession of the appellant connecting him with the commission of offence.

11. P.W Dr. Muhammad Ibraim Jatoi Ex. MNA, who was to be targeted in the incident, was examined at trial. He stated in his evidence that he cannot say with certainty that appellant was one of the accused who fled away but he deposed that his body guards informed him that present accused was one of them. It is crystal clear from the statement of P.W Dr. Muhammad Ibrahim that he had deposed against the appellant at the instance of his body guards. The complainant P.W Allah Warayo has clearly stated in his cross examination that the four accused who were on two motorcycles were about 35/40 paces away from them at the time of incident. Question arises that when the four accused persons were away from complainant party about 35/40 paces so also the bomber, when in the result of the blast wind screen of both the vehicles were broken and they were severely damaged, the body of the bomber/suicider went in to pieces, how the four accused persons on the motorcycles without any weapons very near to the bomber were escaped safely from the said blast and did not receive a single scratch. The complainant has stated in the F.I.R that after the blast all the four accused persons went away along the road side. Since the complainant party was armed with sophisticated weapons with a powerful vehicles neither they fired upon them nor chase the rest of the culprits who were empty handed and were going along the road side. This clearly shows mala fides on the part of complainant.

12. As far as the medical evidence is concerned, it is a fact that the IO visited the place of occurrence, obtained certificates from the Special Branch, Shikarpur, secured the dead body of terrorist/bomber, pieces of bom and motorcycle, finger prints, damaged vehicle of Dr. Muhammad Ibrahim and pieces of bomb were sent to Karachi Laboratory, hair and teeth of dead body of bomber sent to Islamabad laboratory for its DNA test but no any relevancy was matched with the appellant nor any solid proof has been submitted against the appellant involving him with the bomb blast. It is by now well settled principle of law that the medical evidence is a type of supporting evidence which may confirm the ocular account with regard to the nature of injury, kind of weapon etc. in the occurrence but it would not identify the assailant. In the present, there is no convincing, direct or circumstantial evidence available against the appellant connecting him with the commission of this offence.

14. We have considered all the aspects of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond shadow of doubt. It is by now well-settled law that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case replete with number of circumstances which have created serious doubt about the prosecution story. In the case of Tariq Pervez v. The State (1995 SCMR 1345) the Hon’ble Supreme Court was pleased to observe as under:--

“The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.”

The Hon’able Supreme Court of Pakistan while reiterating the same principle in the case of Muhammad Akram v. The State (2009 SCMR 230) observed as under:-

“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 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.”

15. Furthermore, the responsibility to prove its case against the accused squarely rests upon the prosecution and this burden cannot be shifted to the defence. In this respect reference may be made to the case of Mst.Shamshad v. The State (998 SCMR 854) and Waqar v. Shaukat and others (2006 SCMR 1139).

16. In the light of above discussion, we are of the view that the prosecution has failed to prove its case against the appellant beyond shadow of doubt, therefore, we accept the instant appeal, set aside the conviction and sentence awarded to the appellant recorded by learned Judge, Anti Terrorism Court, Shikarpur vide judgment dated 03.02.2015 and acquit him of the charges by extending him the benefit of doubt. Appellant Abdul Razak is in custody, he be released forthwith if not required in any other case.

17. These are reasons of our short order dated 18.4.2018.

Judge

Abid H. Qazi/**