IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl.  Appeal  No.S-10   of   2020

 

 

 

Appellant               :  Mithal son of Moula Bux Mugheri.

 

Respondent           :  The State.

 

 

Mr. Athar Abbas Solangi, advocate for the appellant.

Mr. Ali Anwar Kandhro, Additional Prosecutor General.

 

 

Date of hearing      : 05-11-2020.

Date of Judgment  : 19-11-2020.                  

 

 

J U D G M E N T.

 

NAIMATULLAH PHULPOTO, J.-              Mithal Mugheri appellant was tried by learned 1st Additional Sessions Judge/MCTC, Kamber, in Sessions Case No.372 of 2019, arising out of Crime No.246 of 2019, registered at Police Station Saddar Kamber. On the conclusion of the trial, vide judgment dated 15.01.2020 the appellant was convicted for offence under Section 24 of Sindh Arms Act, 2013 and sentenced to eight years R.I. and to pay fine of Rs.50,000/-. In case of default in the payment of fine, the appellant was directed to undergo S.I. for two years more. Appellant was extended benefit of Section 382-B, Cr.P.C.

 

2.                Brief facts leading to the filing of the appeal are that on 01.12.2019 SIP Khadim Hussain Jagirani on spy information along with his subordinate staff left police station vide Roznamcha entry No.7/2019, at 1200 hours, for arrest of the appellant/accused nominated in FIR No.245/2019, registered at P.S Kamber Saddar, under Sections 302, 311, PPC. Police party proceeded to the pointed place viz., curve of village Kajlo Mugheri, where at 1230 hours appellant was found going armed with a DBBL gun.  He was apprehended by above-named SIP. On account of non-availability of the private mashirs, made PCs Mohammad Siddique Magsi and Mumtaz Ali Mugheri as mashirs and conducted search of the accused and recovered from his possession one DBBL gun and 04 live cartridges of 12-bore, for which he had no license.  Mashirnama of arrest and recovery was prepared at spot and case property was sealed. Thereafter, accused and case property were brought at the police station, where FIR bearing Crime No.246/2019 was lodged against the accused on behalf of the State for offence under Section 24 of Sindh Arms Act, 2013. 

 

3.                During investigation, case property/gun and 04 live cartridges were sent to the Ballistic Expert for the report.  After usual investigation, challan was submitted against the accused in the main case bearing Crime No.245/2019, under Section 302, 311, PPC as well as in the instant offshoot case.  Both cases were sent up to the Court of Sessions for trial.

 

4.                Learned 1st Additional Sessions Judge/MCTC, Kamber in the main case bearing Sessions Case No.371/2019 re-State v. Mithal Mugheri, bearing Crime No.245/2019 of Police Station Saddar, Kamber, registered under Sections 302, 311, PPC, convicted the appellant under Section 302(b), PPC and sentenced him to death for committing murder of Mst. Zarina Khatoon wife of his brother.  Appellant was ordered to pay compensation of Rs.10,00,000/- to be paid to the legal heirs of said deceased in terms of Section 544-A, Cr.P.C. Appellant being aggrieved and dissatisfied from impugned judgment, preferred the Criminal Appeal No.D-05/2020.  Trial Court made reference to this Court for confirmation of death sentence. Appeal in the main case was admitted for regular hearing.

5.                Appellant was separately tried in this case. Appellant pleaded ‘guilty’ to the charge at Ex.2.  Prosecution in order to prove its case examined before the trial Court PWs mashir PC Mohammad Siddique Magsi and complainant/IO SIP Khadim Hussain Jagirani.  Thereafter, prosecution side was closed.  Trial Court recorded statement of accused under Section 342, Cr.P.C, in which he claimed false implication and raised plea that crime weapon has been foisted upon him.  Appellant did not lead any defence and declined to give statement on oath. Trial Court on the assessment of evidence convicted and sentenced the appellant, as stated above.  Hence this appeal.

 

6.                It is pertinent to mention here that in the main case under Sections 302, 311, PPC, compromise application was filed by the parties and this Court vide orders dated 30.06.2020 allowed the compromise application and set aside the conviction and sentence recorded by the trial Court.       

 

7.                Facts of this case as well as evidence find an elaborater mention in the judgment of the trial Court, hence I avoid repetition and duplication.

 

8.                Mr. Athar Abbas Solangi, learned advocate for the appellant mainly contended that prosecution failed to prove it’s case against the appellant; that trial Court did not convict the appellant on his pleading ‘guilty’ as it is the duty of prosecution to prove it’s case irrespective of any plea raised by accused at trial.  It is further submitted that according to the case of prosecution crime weapon was used in the commission of the murder of the wife of the brother of the appellant, but prosecution has failed to prove the evidence with regard to the safe custody and safe transmission of the crime weapon to the Ballistic Expert.  It is further submitted that it was a case of spy information, SIP Khadim Hussain had sufficient time to call independent and respectable persons of the locality, but he deliberately avoided to do so. Lastly, it is submitted that there are several circumstances in this case, which have created doubt in the case of prosecution and a single circumstance is sufficient to extend the benefit of doubt.  In support of his submissions, he has relied upon the case reported as KAMAL DIN alias KAMALA v. THE STATE (2018 SCMR 577), SAIFULLAH V. THE STATE (1992 MLD 984 Karachi) and Tariq Parvez v. The State (1995 SCMR 1345). 

 

9.                Mr. Ali Anwar Kandhro, learned Additional Prosecutor General argued that appellant had pleaded ‘guilty’ to the charge, despite that prosecution examined the witnesses.  It is further submitted that report of Ballistic Expert was positive; that prosecution has proved its case against the appellant and prayed for dismissal of the appeal.

 

10.               I have carefully heard the learned Counsel for the parties and scanned entire evidence available on the record.

 

11.               Record reflects that the appellant pleaded ‘guilty’ to the charge framed at Ex.2. Despite that, trial Court rightly recorded evidence of the prosecution witnesses because it is not mandatory for the trial Court to pass an order of conviction where accused pleads guilty. It is settled principle that the prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal, as held in the case of Shamoon alias Shamma v. The State (1995 SCMR 1377).

 

12.               So far the merits of this case are concerned, admittedly it was a case of spy information.  SIP Khadim Hussain had received spy information that appellant was wanted in the murder case bearing Crime No.245/2019 and he was available at the pointed place.  It was day time, no efforts were made by above-named SIP to collect/call private persons of the vicinity to witness the recovery proceedings, though availability of the private persons during day hours at the place of recovery could not be ruled out.  I am conscious of the fact that provisions of Section 103, Cr.P.C are not attracted to the case of personal search, but in the present case, omission to take independent mashirs from locality cannot be brushed aside lightly.  After all preparation of mashirnama is not a formality but it’s object is to prevent unfair dealings.  It is the case of the prosecution that crime weapon was used by the appellant in the murder of the wife of his brother.  Case proceeded before the trial Court, but prosecution failed to produce the evidence with regard to the safe custody and safe transmission of the weapon to the Ballistic Expert, which is the requirement of law, as held by the Hon’ble Supreme Court in the case of the case of KAMAL DIN alias KAMALA v. THE STATE (2018 SCMR 577).  The relevant observations read as under:-

“4.     As regards the alleged recovery of a Kalashnikov from the appellant’s custody during the investigation and its subsequent matching with some crime-empties secured from the place of occurrence suffice it to observe that Muhammad Athar Farooq DSP/SDPO (PW18), the Investigating Officer, had divulged before the trial Court that the recoveries relied upon in this case had been affected by Ayub, Inspector in an earlier case and, thus, the said recoveries had no relevance to the criminal case in hand. Apart from that safe custody of the recovered weapon and its safe transmission to the Forensic Science Laboratory had never been proved by the prosecution before the trial Court through production of any witness concerned with such custody and transmission.”

 

13.               As regards the evidence of the police officials is concerned, no doubt, evidence of the police officials cannot be discarded simply because they belong to police force; however, where the fate of the accused persons hinges upon the testimony of police officials alone, it is necessary to find out if there was any possibility of securing independent persons at the time.  In this case availability of the private witnesses could have been easily arranged, but it was avoided by the complainant/investigation officer. Accused in his statement recorded under Section 342, Cr.P.C. has claimed false implication in this case and raised plea that crime weapon has been foisted upon him by the police. In these circumstances, evidence of the police officials without independent corroboration would be unsafe for maintaining the conviction. Judicial approach has to be cautious in dealing with such evidence, as held in the case of SAIFULLAH V. THE STATE (1992 MLD 984 Karachi). Relevant portion is reproduced as under:-

                        “8.       The evidence of police officials cannot be discarded simply because they belong to police force. In Qasim and others v. The State reported in PLD 1967 Kar. 233, it was held:

“A police officer is as good a witness as any other person. The standard of judging his evidence is the same on which the evidence of any other witness is judged.”

 

However, in a case of this nature where the fate of an accused person hinges upon the testimony of police officials alone, it is necessary to find out if there was any possibility of securing independent persons at that time.  Judicial approach has to be cautious in dealing with such evidence.”

 

14.               In my considered view, prosecution has failed to prove its case against the appellant. Circumstances mentioned above have created reasonable doubt in the prosecution case. It is settled law that it is not necessary that there should be many circumstances creating doubts. If there is single 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. In this regard, reliance can be placed upon the case of MUHAMMAD MANSHA v. THE STATE (2018 SCMR 772), wherein the Honourable Supreme Court has observed as follows:-

“4.     Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt.  If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right.  It is based on the maxim, “it is better that ten guilty persons be acquitted rather than one innocent person be convicted”.  Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749).”

 

15.               In view of what has been discussed above, I have no hesitation to hold that the prosecution has failed to prove its case against the appellant. Keeping in view the above facts and circumstances, the appeal is allowed. Conviction and sentence recorded by the trial Court vide impugned judgment dated 15.01.2020 passed by the learned 1st Additional Sessions Judge/MCTC, Kamber, in Sessions Case No.372 of 2019 are set aside and appellant Mithal son of Moula Bux Mugheri is acquitted of the charge. He is directed to be released if not required to be detained in any other case.

 

                                                                                                JUDGE

 

 

 

 

 

 

Qazi Tahir PA/*                 

 

 

 

In case reported as Wazir Mohammad Vs the State 1992 SCMR 1134 it was held by Honourable Supreme Court of Pakistan as under:

            “In the criminal trial whereas it is a duty of the prosecution to prove its case against the accused to the hilt. But no such duty is cost upon the accused, he has only to create doubt in the case of the prosecution”.             

                        In case of Shamoon alias ShammaVs the State 1995 SCMR 1377 it was held by the Honourable Supreme Court as under:

                        “The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal.

 

Muhammad Shah v. The State (2010 SCMR 1009)

Tariq Parvez v. The State (1995 SCMR 1345).