IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No.S-28 of 2022.

Appellant: Khan alias Patai alias Muhammad Safar son of Faiz Muhammad by caste Panhwar

Through Mr. Waqar Ahmed Chandio, Advocate

The State:                       Through Mr.Ali Anwar Kandhro, Addl.P.G.

Date of hearing:             27-02-2023

Date of decision:             27-02-2023

JUDGMENT

ZULFIQAR ALI SANGI, J;- The instant criminal appeal impugns the judgment dated 21.05.2022, delivered by learned Assistant Sessions Judge-II, Mehar, in Sessions Case No.47/2022, emanating from FIR bearing Crime No.177/2021, for offence punishable U/S.324, 353, 398 PPC, registered with P.S, K.N.Shah, whereby the appellant has been convicted and sentenced as under;

For offence U/S.324 PPC, the accused is sentenced to suffer R.I for 07 years (Seven Years) with fine of Rs.10,000/- (Ten Thousand). In case of non-payment of fine amount, the accused shall further undergo S.I for Six Months.

For offence U/S.398 PPC, the accused is sentenced to suffer R.I for 07 years (Seven Years).

For offence U/S.353 PPC, the accused is also sentenced to suffer R.I for 01 year (One Year) with fine of Rs.10,000/- (Ten Thousand). In case of non-payment of fine amount, the accused shall further undergo S.I for Six Months.

All the sentences shall run concurrently. The benefit of Section 382-B Cr.PC is also extended to accused.

2.       The allegation against the present appellant/accused is to the effect that on 30.10.2021 complainant ASI Muhammad Munir alongwith his staff while on patrolling reached near the curve of Bahadur Pur, at about 0400 hours, saw three persons emerged on the road who considering the police mobile as private vehicle indicated to stop with an attempt to commit robbery and one of them was identified on headlights to be notorious criminal Altaf Janwari with two unknown, armed with deadly weapons. When the police party stopped the police mobile, the accused started firing at them with intention to commit their murder which was retaliated by them in their defence and in the meanwhile one of the accused raised cries that he has sustained firearm injuries and rescue him, whereupon the firing stopped and the remaining accused made their escape good while the injured accused was apprehended by them with one 30 bore pistol lying beside him with magazine containing three live bullets which was taken into custody. Such encounter lasted for about ten minutes and the accused sustained firearm injury on his right leg which was bleeding who on query revealed his identity to be Khan alias Patai Panhwar (present appellant). Two currency notes of Rs.50/- were also secured from left side of his shirt. Accused disclosed that he alongwith his companion Altaf Janwari and another accused came on road with a desire to commit robbery and he sustained firearm injury at the hands of his accomplices. On query about license of the pistol, the accused disclosed it to be unlicensed. The accused was also found involved/wanted in various crimes. The recovered pistol with bullets was sealed at the spot. Such memo of arrest and recovery was prepared in presence of mashirs PC Ali Hassan and PC Mukhtiar Ali and thereafter the accused with case property was then taken to Taluka Hospital K.N.Shah where leaving accused under supervision of constables, the complainant came at police station and lodged separate FIRs against him on behalf of State.

3.       On completion of usual investigation, the police submitted final report under section 173 Cr.PC before the concerned Magistrate. Thereafter, the formal charge was framed against the present appellant/accused by learned trial Court, to which he pleaded not guilty and claimed trial.   

4.       To prove the case, the prosecution examined three witnesses i.e PW-01 Complainant/ASI Muhammad Muneer, PW-02 Mashir PC Ali Hassan and PW-03 SIO/ASI Imam Bux Khoso, who all produced certain documents and items in support of their statements. Thereafter, learned State Counsel closed the side of prosecution.

5.       Appellant/accused in his statement recorded U/S.342 Cr.PC, denied the allegations leveled against him by pleading his innocence stating therein that he has been implicated falsely due to dispute over land and produced copy of application U/S.22-A Cr.PC filed by his brother. He, however, did not examine himself on oath in disproof of the charge nor led any evidence in his defence.

6.       The learned trial Court on appraisal of the material brought on record and hearing counsel for the parties convicted and sentenced the present appellant/accused vide judgment, as detailed above.

7.       Per learned defence counsel, the instant case is false and fabricated against present appellant/accused; that the evidence of complainant, SIO and mashir being contradictory have no credibility and thus cannot be relied upon without independent corroboration; that the recovery of alleged crime weapon with bullets has been foisted against appellant/accused just to strengthen this case. Summing up his contentions, the learned defence counsel submitted that the present accused has been arraigned in this case falsely by the police, as such the case of prosecution is doubtful and has no foundation against the appellant/accused, therefore, he deserves to be acquitted in the circumstances of case.

8.       In rebuttal to above, learned Addl.P.G for the State contends that all the witnesses have fully supported the case of prosecution and no major contradiction is noticed in their evidence; that the recovery of crime weapon on analysis has substantiated the involvement of present appellant/accused in the commission of offence; that the FSL report has fully supported the case of prosecution. Lastly, he  submitted that the learned trial Court finding the appellant/accused guilty of the offence has rightly convicted and sentenced him by way of impugned judgment which calls for no interference by this Court, therefore, the appeal filed by him being devoid of merits is liable to be dismissed.

9.       Heard arguments of learned counsel for the parties and have minutely gone through the material made available on record with their able assistance.

10.     The meticulous re-appraisal of evidence brought on record is entailing that all the witnesses have tried to support the case of prosecution but their evidence on deeper analysis was found unreliable coupled with material improbabilities. For the instance, the complainant in his cross examination stated that injury of injured accused was tied with cloth present in police mobile and that he himself conducted personal search of injured accused but his version is in conflict with Mashir PC Ali Hassan who in his cross examination stated that injury of injured was tied with towel of police constable and personal search of accused was conducted by complainant ASI Munir. Complainant further added that memo of arrest was written by PC Rehmatullah under his dictation and that he himself sealed the recovered pistol and affixed three seals while mashir in his cross examination stated that ASI prepared memo of arrest and recovery while sitting and that ASI Munir Ahmed sealed the pistol and bullets and affixed two seals. Further, the complainant in his cross examination stated that the contents on sealed parcel alongwith crime number were written at the place of incident but it was quite astonishing that when the complainant set out from police station leaving one ASI namely Abdullah Joyo as incharge of police post then how he came to know about the exact crime number of present case left for him to be written over the parcel of recovered case property. This piece of evidence is quite ridiculous and do not appeal to the judicial conscience which obviously has led the claim of encounter to be under a cloud. Moreover, the broad features involved in the present case surfaced that it was quite incredible that an encounter took place in between the accused and police party from such a close distance, yet no marks of firing were found on police mobile or at any surrounding object. In addition to this, the dis-appearance of remaining escapees/accused from the venue of occurrence in such a crucial situation also appears to be incredible. This story was quite amazing and do not appeal the prudent mind that there would be truth in the above version of the prosecution witnesses for the reason that firing was exchanged between the parties from such a close distance and as to why it remained ineffective against the police party. In addition to this, despite the place of incident situated on road near Curve of Bahadur Pur which was frequented by traffic and public yet no any passerby there-from was taken to act as mashir/witness. In fact no effort was made to take some-one from the public, which was in clear disregard of mandatory provisions of Section 103 Cr.PC. Moreover, the accused is alleged to have received firearm injury during an armed encounter with police and was subsequently shifted to hospital for treatment but the prosecution has failed to examine the medical officer, for no obvious reason, which has discredited the version of the complainant that any encounter had taken place at all.

11.     As to the recovery of empties from the venue of occurrence, it is suffice to say that the investigation officer during course of investigation recovered three empties fired by the accused but the same were not dispatched to the Forensic Laboratory to match the same with the pistol secured from the present appellant/accused which has led an adverse impact against the prosecution story. Moreover, the recovered crime weapon was dispatched to the FSL ten days after its recovery, for which the prosecution has failed to furnish any satisfactory explanation that as to where it was kept for such intervening period which has made the FSL report to be questionable, nor the official who took the same to the Laboratory was examined by the prosecution. Further, no entry relating to keeping of the recovered case property at Malkhana was brought on record to establish the claim of prosecution. The reliance in this context is placed upon case of Muhammad Amir and others V. The State (2020 MLD 1777), wherein the 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.

12.     The over-all discussion arrived at conclusion that the prosecution has miserably failed to prove the guilt against present appellant beyond shadow of any reasonable doubt and it is a well-settled principle of law that for creating the shadow of a doubt, there should not be many circumstances. If a single circumstance creates reasonable doubt in the prudent mind, then its benefit is always extended in favour of the accused not as a matter of grace or concession, but as a matter of right. In this respect reliance is placed on the case of Muhammad Mansha v. The State (2018 SCMR-772), wherein the Hon’ble Supreme Court of Pakistan has held that:-

“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 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)”.

13.     For what has been discussed, I am of the judicious view that the learned trial Court has not evaluated the evidence in its true perspectives and thus arrived at an erroneous conclusion by holding present appellant as guilty of the offence. Thus, the conviction and sentence recorded against him by way of impugned judgment could not be sustained, it is set aside. Resultantly, the appellant was acquitted of the charged offence.      

14.     Above are the reasons of my short order dated 27.02.2023 whereby the instant criminal appeal was disposed of accordingly.

    JUDGE

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