HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No.124 of 2019
Criminal Appeal No.125 of 2019
Criminal Appeal No.128 of 2019
Criminal Appeal No.211 of 2019
Appellants : Ghulam Mustafa son of Muhammad
(in appeals No.124 & Mukhtiar, through M/s. Khawaja Saiful
125 of 2019) Islam & Syed Ahmed, Advocates.
Appellant : Hamza son of Irshad, through
(in appeal No.128 Ms. Zahida Mejeed, Advocate.
of 2019)
Appellant : Shahrukh son of Tayeb Qadri,
(in appeal No.211 through Mr. Habib ur Rehman
of 2019) Jiskani, Advocate.
Respondents : Additional Sessions Judge-IX, Karachi
(West) and State, through Mr. Abdullah Rajput, Deputy Prosecutor General, Sindh.
Date of hearing : 15.10.2019
Date of Judgment : 15.10.2019
JUDGMENT
Abdul Maalik Gaddi, J.– By this common judgment, I intend to dispose of the captioned appeals, as these appeals are related to same incident.
2. By means of these appeals, the appellants have challenged the judgments dated 19.02.2019, passed by the Court of learned Additional Sessions Judge-IX, Karachi (West), in Sessions Cases No.1944 and 1945 of 2018, emanating from Crimes No.245 and 246 of 2018, registered at police station Iqbal Market, under Section 392/394/34, PPC and 23(i)(a) of Sindh Arms Act, 2013, whereby the learned trial Court after full dressed trial, convicted and sentenced the appellants as stated in point No.2 of the impugned judgments. For the sake of convenience, it would be appropriate to reproduce the findings of point No.2 of the impugned judgments, which read as under:-
Criminal Appeals No.124, 128 & 211 of 2019
Sessions Case No.1945 of 2018
“POINT NO.2.
20. In view of discussion made hereinabove the prosecution has proved guilt of the accused persons beyond reasonable doubt. It is established that the accused persons in furtherance of their common intention by using deadly weapon committed robbery from the complainant and therefore, they have committed the offence under s. 397, read with section 34 PPC and therefore, they are convicted of the charge. The accused persons are sentenced to rigorous imprisonment for the period of seven years and fine of Rs.20,000/- each in addition to the substantive sentence. The amount of fine is to be paid to the complainant on account of mental anguish and damage caused to him during the incident as provided under s. 545 read with s. 544-A Cr.P.C. In case of failure in payment of fine the accused persons shall undergo S.I. for six months. The benefit of section 382-B PPC is also extended to accused persons. Accused are produced in custody and they are remanded to jail to serve out the sentence in accordance with law.
Criminal Appeal No.125 of 2019
Sessions Case No.1944 of 2018
“POINT NO.2.
18. In view of discussion made hereinabove it can be safely concluded that the prosecution has successfully proved its case against the accused beyond reasonable doubt. The accused is convicted for offence punishable under section 23(1) of Sindh Arms Act. The accused sentenced to five years imprisonment and fine of Rs.10,000/- in case of default the accused shall undergo simple imprisonment for the further period of three months in addition to the substantive sentence already awarded. The accused is entitled to benefit of section 382-B Cr.P.C. The accused is produced in custody, he is remanded to judicial custody to serve out his sentence in accordance with law.”
3. The brief facts of the prosecution case as narrated by the complainant Abdul Hameed in FIR that on 09.09.2018, he left his house for proceeding to Sabri Chowk on motorcycle. At about 1830 hours, when he reached at main road Awari Chowk, three persons emerged on motorcycle, who intercepted the complainant and aimed pistol at him, snatched his Rs.1200/- along with CNIC and a wallet. The complainant raised hue and cries suddenly one police mobile arrived to whom complainant narrated the facts. Police immediately chased the assailants and managed to apprehend all three of them. The arrested persons disclosed their names as Ghulam Mustafa from whom one 30 bore was recovered. The other person disclosed his name as Hamza from whom Rs.1200/- along with wallet and CNIC of the complainant was recovered and third person disclosed his name as Shahrukh who was driving the motorcycle and from his possession one motorcycle was recovered for which he failed to produce documents of the ownership. Police officer confirmed from the ACLC that the recovery motorcycle was theft property and such matter was reported to P.S. Orangi Town.
4. The formal charges were framed against the appellants/accused on 06.12.2018 at Ex.2, to which they pleaded not guilty and claimed to be tried vide their pleas at Exs.2/A to 2/C respectively.
5. At trial, prosecution had examined the complainant Abdul Hameed at Ex.3, who produced memo of arrest and recovery, statement recorded under Section 154 Cr.P.C., FIR, memo of place of incident at Ex.4 to Ex.10 respectively; PW-2 HC Nadeem Anwar at Ex.11; PW-3 I.O./ASI Shamim Jaffri at Ex.12, who produce roznamcha entries, letter issued for obtaining CRO of accused along with CRO reports of accused, letter issued for FSL along with FSL report at Ex.13 to Ex.21 respectively. These witnesses were cross examined by the Counsel for the appellants and thereafter, prosecution had closed its side vide statement at Ex.22.
6. Statements of accused were recorded under Section 342 Cr.P.C. at Exs.23 to 25 respectively, in which they denied the allegations as leveled against them and claimed to be innocent and prayed for justice. Accused did not opt to examine themselves on oath; however, they led evidence in their defense namely Zulfiqar Ali, Shahzad, Muhammad Kashif and GhulamRasool in disproof of the charge.
7. Learned Counsel for the appellants contended that appellants are innocent and have been falsely implicated by the complainant and police; that the impugned judgment passed by the trial Court is against the law and on facts; that the alleged recovery of weapon has been foisted upon appellant Ghulam Mustafa; that father of the appellant Shahrukh has made a serious allegations against the law enforcing agencies including police officials through publication in Daily Janbaz dated 04.09.2018, which is available on record, stated therein that they kept him in jail in a false case and there is an apprehension of implication of his family members in such type of false cases and this fact has not been denied by the prosecution; that father of appellant Shahrukh has also moved an application to the then Inspector General of Police namely, Mr. Shahid Hayat against the police officials, but no action has been taken against the police officials; that the evidence so brought on record by the prosecution witnesses in these cases are contradictory in nature to each other on material particulars of the case. During the course of arguments, learned Counsel for appellants have taken to me towards the evidence of prosecution witnesses and highlighted the number of contradictions in between the statements of prosecution witnesses, therefore, according to them, on the basis of contradictory evidence, conviction could not be maintained, hence, prayed for acquittal of appellant.
8. In contra, Learned Deputy Prosecutor General, Sindh for the State has supported the impugned judgments passed by the trial Court and contended that the appellants were arrested on spot and one unlicensed 30 Bore Pistol loaded magazine three live bullets without number, was recovered from the possession appellant Ghulam Mustafa in presence of mashirs and said weapon was in working condition, so also, all the mashirs have fully supported the case of prosecution; that offence committed by the appellants are serious and heinous in nature, thus, appellants are not entitled for any relief.
9. I have given my anxious thoughts to the contentions raised at the bar and have also gone through the case papers so made available before me.
10. After going through the record, I have come to the conclusion that the prosecution has failed to establish its case against the appellants for the reasons that all the pieces of evidence produced by prosecution in this case are weak in nature. As per version of complainant (Abdul Hameed) as narrated in FIR, on 09.09.2018, he left his house for proceeding to Sabri Chowk on his motorcycle and at about 1830, when he reached near Awami Chowk, he saw that present appellants on one motorcycle appeared from the street and stopped him. consequently, one of the appellant hold the pistol upon him and snatched his purse containing Rs.1200/-, photocopy of CNIC etc. from his possession, while contradicting this fact, complainant Abdul Hameed in his evidence at Ex.6 deposed that on 09.09.2018, he was proceedings to Banaras from his house on motorbike. Not only this, PW HC Nadeem Anwer, who was the writer of memo of arrest, recovery and the FIR, so also, investigating officer of the case. He in his cross examination at Ex.11, deposed that incident took place on 09.09.2018, on the said day, it was the Friday due to which he could not call any independent witness of the locality, but after going through the calendar of the relevant year, it reveals that the day of incident i.e. 09.09.2018, it was Sunday. Hence, this alone, a dent has been created in the case of prosecution.
11. A part from that, as per prosecution story, on the day of incident police party were busy on patrolling, but it is surprising to note that during evidence before the trial Court, not a single prosecution witness has produced such roznamcha entry in trial Court to the effect that when they left the police station, to ascertain the actual date and time, police party were busy on patrolling. This fact also create doubt in the prosecution case as to whether the incident has not taken place in a fashion as stated in FIR or otherwise. Moreso, as per memo of arrest and recovery at Ex.7, it is also the case of prosecution that on the relevant date and time, appellants were came on motorcycle bearing Registration No.KGK-5235 maker Unique, black colour and committed the alleged incident, but it is also surprising to note that this case property (motorcycle) has not been produced in evidence before the trial Court and no explanation in this regard has been assigned by the prosecution. Moreover, as per memo of arrest and recovery at Ex.7, it reveals that after the arrest of the appellants, case properties were sealed at the spot in presence of mashirs, but during recording of evidence before the trial Court, when the case properties were produced in Court, except pistol, other case properties were not in sealed condition. On this ground alone, the foistation of the alleged weapon upon the appellants with due deliberation and consultation could not be ruled out.
12. Furthermore, as per memo of arrest and recovery at Ex.7, the alleged incident took place on 09.09.2018, but the alleged weapon were sent to the office of Assistant Inspector General of Police, Forensic Division, Sindh, Karachi, for examination on 11.09.2018, after the delay of about three (3) days, for which no explanation has been furnished by the prosecution. Moreso, the alleged weapon was retained by whom during this intervening period has also not been explained by the prosecution that after its recoveries under whose custody, it were lying. For the sake of arguments, if it is assumed that the case property was lying in the Malkhana then no report/entry of the Malkhana has been produced to corroborate the version of prosecution. No official from Forensic Division has been examined in this case. Therefore, under the circumstances, no reliance could safely be placed on FSL report for conviction of the appellants on the basis of contradictory evidence.
13. On further perusal of memo of arrest and recovery at Ex.7, it appears that PC Babar Riaz has also been shown as mashir of recovery, but he has not been produced by the prosecution in to the witnesses box for evidence. In my humble opinion, the evidence of said witness PC Babar Riaz was necessary to have been produced to corroborate the prosecution case, particularly, with regard to identity of accused, but no such evidence was produced. Even otherwise, no explanation in this behalf has been tendered by prosecution to justify the non-examination of said witness. The act of withholding of most material witness would create an impression that the witness if would have been brought in to witness box, he might not have supported the prosecution case and in such an eventuality, the prosecution must not be in a position to avoid the consequences; hence, a dent has been caused to the case of the prosecution. When all these facts confronted to learned Deputy Prosecutor General, Sindh for explanation/reply, he has no answer with him.
14. During the course of arguments, learned Counsel for the appellant Shahrukh has drawn the attention of this Court towards the news clipping/publication in Daily Janbaz dated 04.09.2018, which is available on record, made by the father of appellant Shahrukh, leveling serious allegations against the law enforcing agencies including police officials that they kept him in jail in a false case and there is an apprehension of implication of his family members in such type of false cases. When again this fact confronted to learned Deputy Prosecutor General, Sindh, he has not denied the same. Counsel for the appellant Shahrukh has also argued that father of appellant Shahrukh has also moved an application to the then Inspector General of Police namely, Mr. Shahid Hayat against the police officials, but no action has been taken against the police officials, therefore, false implication of the appellants in these cases could not be ruled out and this also shows the malafide on the part of prosecution.
15. All the above circumstances have proved that neither the incident as alleged, had taken place. It is settled principle of law that to extend benefit of doubt there is no necessity to gather many circumstances, but even if slightest doubt arises out of prosecution case, is sufficient to extend the benefit of doubt to the accused. In the instant case in view of the discussion whatever discussed hereinabove and the material placed before me has constrained to hold that the prosecution has miserably failed to prove its charge against the appellants beyond any reasonable shadow of doubt. Consequently, these appeals are allowed. The impugned Judgments dated 19.02.2019, passed by the trial Court are set-aside. Resultantly, the appellants are acquitted of the charge. Appellants are in custody, therefore, jail authorities is directed to release the appellants, if they are not required in any other case.
16. These appeals were allowed by me through a short order dated 15.10.2019 and these are the detailed reasons thereof.
JUDGE
Faizan A. Rathore/PA*