IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Cr. Appeal No. S-03 of 2021
Appellant: Nakeef Nindwani,
Through Mr. Amanullah Luhur, advocate
The State: Through Mr. Muhammad Noonari,
Deputy Prosecutor General.
Date of hearing: 09-04-2021.
Date of Decision: 09-04-2021.
Date of Reasons: 22-04-2021.
J U D G M E N T
Zulfiqar Ali Sangi, J.Through instant criminal appeal, the appellantNakeef s/o Suhrab Nindwani has impugned the Judgment dated 21.01.2021, passed by the learned Sessions Judge, Kashmore At Kandhkot in Sessions Case No. 577/2020, re: State V/S Nakeef Nindwani and others, being outcome of Crime No.38/2020 of P.S. Ghulam Sarwar Sarki U/S 324,353,402,34 P.P.C, whereby the trial court has convicted the appellant and sentenced him U/S 324 PPC, read with section 34 PPC, to under-go R.I for Five Years. He was also convicted and sentenced U/S 353 PPC to under-go R.I for One Year. All the sentences were directed to run concurrently. However, the benefit of Section 382 (b) Cr.P.C was extended to the appellant/accused. Accused Nakeef was present on bail, he was taken into custody and remanded to jail to serve out the sentence awarded to him.
2. Brief facts of the prosecution case as per F.I.R lodged by complainant ASI Qadir Bux Dahani, are that on 25.09.2020, he alongwith his subordinate staff consisting upon P.Cs Muhammad Sharif, Gulzar Ahmed, left Police Station for patrolling, vide entry No.02 at 0820 hours. It is further alleged that during patrolling complainant received spy information that wanted accused Nakeef, in crime No.37/2020, U/S 392 PPC, alongwith his companions, were standing in jungle, near link road leading to Sardar Mari, with intention to commit some offence. After receiving such information,the complainant proceeded to the pointed place, when they reached on Sardar Mari link road near jungle at 1030 hours. In the meantime, accused Nakeef armed with T.T pistol, Hakim armed with T.T pistol and one unidentified culprit armed with T.T pistol, emerged out from jungle and on seeing complainant party, the accused started straight firing upon them, with intention to commit their murder, the police party after taking position fired upon accused, they forwarded ahead and narrow down the circle of accused and after encounter for Ten minutes, accused Nakeef raised cries that he has received fire arm injury at hands of his companions, thereafter, the remaining accused made their escape good, while complainant succeeded to apprehend accused Nakeef in injured condition having fire arm injury at his right leg, alongwith one T.T pistol fitted with magazine containing five live bullets. On enquiry accused Nakeef disclosed that the pistol and bullets were unlicensed. Complainant also recovered one Motor cycle CD.70 Model 2018 from the venue. Thereafter, complainant appointed P.Cs. Muhammad Sharif and Gulzar Ahmed as mashirs and prepared such memo of arrest of accused and recovery of unlicensed T.T pistol and motor cycle and after completing legal formalities took accused and case property to Police Station, where he lodged FIR against accused, on behalf of the State.
3. After usual investigation, the accused was challaned before the Court showing him in custody and showing accused Hakim and Nasarullah @ Nasroo as absconders. Necessary papers were supplied to accused and thereafter formal charge was framed againsthim to which he pleaded not guilty and claimed to be tired.
4. Theprosecution in order to prove its case,examined complainant A.S.I. Qadir Bux Dahani at Ex:7, he produced departure entry at Ex.7-A, memo of arrest of accused and recovery at Ex:7-B and FIR at Ex:7-C, P.W.2 PC Muhammad Sharif at Ex.8, he produced memo of inspection of place of vardat and recovery of empties at Ex.8-A. PW- 3 ASI Balch Khan at Ex.9, he produced departure entry at Ex.9-A and report of Forensic Science Laboratory Forensic Division Larkana at Ex.9-B.Thereafter, learned I/C DPP for the State closed side of prosecution, vide his statement at Ex:10.
5. Trial Court recorded statement of accused under Section 342 Cr.P.C, wherein he denied the prosecution allegations, claimed his innocence and false implication in this case.However, the appellant/accused neither examinedhimself on oath nor he produced any defence evidence.
6. After assessment of evidence, learned trial court has passed the above impugned judgment and awarded sentence to the present appellant/accused as mentioned above. Being aggrieved by and dissatisfied with the said judgment appellant/accused above named has preferred this criminal appeal.
7. Learned counsel for the appellant has contended that the appellant isinnocent and has falsely been implicated in this case just to show efficiency; that the prosecution has failed to establish its case against accused;that all the P.Ws are police officials and are very much interested in the investigation and no independent witness was examined. He has further argued that there are material contradictions in the evidence of P.Ws, which create doubt in the prosecution case. He further contended that accused was arrested from his house and subsequently complainant has managed a false and fabricated case against him and that the pistol and live bullets have been foisted upon the accused. He has lastly prayed for the acquittal of the accused.
8. LearnedDeputyProsecutor General has submitted that prosecution witnesses have fully supported the case; that as per law the police officials are good witnesses then the private witnesses; that the forensic report of the T.T pistol recovered from the possession of present accused and the empties secured from the place of vardat was in positive, thus the report of Expert has fully corroborated the ocular version, which can be used against the accused as one of the important piece of evidence to establish the guilt.He has prayed that the impugned judgment be maintained and appealmay be dismissed.
9. I have heard learned counsel for the appellant and learned D.P.G. and have gone through the material available on the record with their able assistance.
10. On reassessment of the entire evidence produced by the prosecution It is established that the prosecution had not proved the case against the appellant beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence.
11. It was the case of prosecution that the appellant was arrested in injured condition and after his arrest he was brought at RHC Tangwani where he was left for the treatment, the prosecution failed to produce any medical evidence in respect of the injuries received by the appellant, even the medical certificate has not been produced by any of the witness who’s evidence was recorded by the trial court. It is settled by now that in the cases of police encounters where only the accused received injuries during the encounter then non production of medical evidence in respect of those injuries is fatal to the case of prosecution.
12. Complainant deposed that appellant was arrested in injured condition and at the time of arrest blood was oozing from the injury, the complainant and the investigation officer failed to collect the blood stained earth from the place of vardat or blood stained cloths of the appellant which he wear at the time of alleged encounter nor the cloths were produced before the trial court to prove the case and to show the hole of bullet on the cloths, which bullet as per version of prosecution hit to the appellant on his leg.
13. Complainant admitted in cross-examination that they were present at the place of incident for about 30 minutes but they not collected the empties from the place of vardat. The mashir PC Muhammad Sharif stated during his cross-examination that they were present at the place of vardat for about 50 minutes. Both the witnesses of the prosecution and the investigation officer however admitted that non from the police party receivedany injury during the encounter.
14. The Mashir PC Muhammad Sharif stated during his cross-examination that at the time of encounter police party was on eastern side while accused persons were on westernside. He also stated in his cross-examination that accused runaway towards eastern side. The trial court had also not considered this point that how the accused person tried to escape on such a direction where police party was available with arms and ammunition and the encounter was continued.The mashir further stated during his cross-examination that they did not follow the remaining accused persons. The evidence of this witness/mashir clearly showed that no encountertook place but the false case was managed against the appellant by the police.
15. As regards to the recovery of crime weapon viz pistol from the appellant, after the reassessment of entire evidence produced by the prosecution I found that the same was foisted upon the appellant. It was also alleged by the prosecution that the recovery of pistol and the empties from the place of vardat were effected on 25-09-2020,and same were sent for FSL on 29-09-2020, no explanation in respect of such delay for about five (05) days was offered by the prosecution. Non explanation of such delay in the circumstance of the case in hand coupled with the fact that none of the police official received any injury during the encounter and the other above discussed circumstance is fatal to the case of prosecution. In the circumstance the positive FSL cannot be relied upon for convicting the accused. Moreover, the safe custody of the recovered pistol and the empties for those five (05) days was not proved by the prosecution by producing any evidence in this respect. Reliance is placed on the case Muhammad Amir and others V. The State (2020 MLD 1777), wherein Division Bench of this court has held as under:-
13. It is further observed that as per record, the weapons allegedly recovered from the appellants on 29.06.2019, but the same were received to the office of the Assistant Inspector General of Police, Forensic Division, Sindh, Karachi, on 02.07.2019 after delay of about two (2) days for which no explanation has been furnished by the prosecution. Moreover, the pistols and bullets were retained by whom during this intervening period has also not been explained by the prosecution. 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. I.O. nowhere has deposed about safe custody of the empties and pistol at Police Station and their safe transmission to the Ballistic Expert, as such positive report of FSL would not improve the case of prosecution.Law is well-settled by now that prosecution is under legal obligation to prove the safe custody of the recovered weapon and its safe transmission to the Forensic Science laboratory as held by the honourable Supreme Court in the case of Kamal Din alias Kamala v. The State (2018 SCMR 577). In the present case appellant Amir received injury whereas neither any police personnel or police mobile received any bullet when it is asserted by P.W PC Mubarak Ali that accused made straight fires upon them from front side. Based on the evidence led, we are of the view that the prosecution story regarding a police encounter does not appeal to logic and the benefit of the doubt must go to the accused.
16. The evidence of police officials as has been discussed above required independent corroboration, which is lacking in the case in hand. The defence pleas raised by the appellant that he was arrested by the police from his house prior to the incident and weapon was foisted upon him in fake police encounter appear to be plausible. However, the learned trial court disbelieved the same without assigning any reason. In these circumstances and after an independent evaluation of evidence available on record, I am of the view that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt. It is settled by now that the benefit of all the favorable circumstances shall be extended to the accused not as a matter of grace or concession butas a matter of right. Reliance is placed on the case of Abdul Jabbar and another v. The State (2019 SCMR 129) and Tariq Pervez v. The State (1995 SCMR 1345).
17. The abovecriminal appeal was allowed vide short order dated 09.04.2021. Impugned judgment dated 21.01.2021, passed by learned Sessions Judge, Kashmore at Kandhkot in Sessions Case No.577/2020, re: State V/S Nakeef Nindwani and others was set-aside. Appellant Nakeef Nindwani was acquitted of the charge in F.I.R No.38/2020 of P.S. Ghulam Sarwar Sarki, U/s 324,353,402,and 34 P.P.C. He was ordered to be released forthwith if not required in any other custody case.
18. These are the reasons of the said short order.
J U D G E