IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Appeal No.S-55 of 2021
Appellants : Bashir alias Bashoo son of Azizullah Machi and Aziz son of Mehrab Jatoi
Through Mr.Akbar Ali H. Dahar, Advocate
Complainant : Zameer Ali Sariyo
Through M/s. Ali Madad Arijo and Wakeel Ali Shaikh, Advocates.
State : Through Mr. Aitbar Ali Bullo, Deputy
Prosecutor General, Sindh.
Date of hearing : 24.03.2023
Date of decision : 24.03.2023
Date of Reasons : 27.03.2023
JUDGMENT
ZULFIQAR ALI SANGI,J.:-This Criminal Appeal is directed against Judgment dated 27.08.2021, passed by learned VI-Additional Sessions Judge, Larkana in Sessions Case No.645/2020(Re.The StateV/s.Bashir alias Bashoo and three others),emanating from F.I.R. bearing Crime No.08/2020, offence U/Ss397, 457, 337-A(ii), 148, 149 P.P.C, registered at Police Station,Airport, District Larkanawhereby present appellantswere convicted for offence punishable U/S.397 P.P.C. and sentenced to suffer R.I for seven years and for offence under section 457 P.P.C they were sentenced to undergo R.I for three years with fine of Rs.10,000/- each and in default whereof, to suffer S.I for six months more, with benefit of Section 382-B Cr.P.C.
2. The facts in a nutshell as per the contents of F.I.R. lodged by complainant Zameer Ali Sario on 19.05.2020 at P.S Airport are that on 28.04.2020, at about 02.45 a.m, the present appellants/accused made unlawful assembly alongwith rest of the culprits in prosecution of their common object and trespassed the house of complainant situated in village Imam Bux Sario with intention to commit dacoity duly armed with deadly weapons;on noise the complainant party woke up and identified five amongst eight accused persons as Kehar armed with pistol, Shamroze armed with repeater, Bashir alias Bashoo armed with pistol, Aziz armed with pistol and Hussain armed with pistol and three unidentified with open faces, if seen again will be identified, they aimed their weapons upon the complainant party, complainant resisted but accused Kehar Jatoi hit butt blow of his pistol to him which hit him on nose and blood was oozing, rest of the accused looted the house and took away gold ornaments, cash and other valuables and ran away. Hence the instant F.I.R.
3. After completion of usual investigation, the case was challaned before the Court of learned Judicial Magistrate by showing accused Bashir @ Bashoo, Aziz, Shamroze in custody and accused Kehar, Hussain, Irfan Ali and two unknown culprits as absconders. Subsequently, accused Irfan Ali joined the trial. The formal charge was framed against all the arrested accused at Exh.06, to which they pleaded not guilty and claimed to betried vide their pleas recorded.
4. The prosecution in order to substantiate its case examined PW-01 Complainant Zameer Ali who produced FIR of the present case. PW-02 Imam Bux, PW-03 Muhammad Muneer Sario. PW-04 SIP Roshan Ali Bhatti author of FIRwho produced roznamcha entry. PW-05 mashir Iqbal Ahmed Sariowho produced mashirnama of inspection of injury of the complainant, mashirnama of place of incident, mashirnama of imaginary arrest of accused Shamroz. PW-06 Medical Officer Dr.Zulfiqar Ali Pathan who produced letter of police, Provisional as well as Final Medical Certificate of injured. PW-07 ASI Abdul HaqSanghrowho produced roznamcha entry and mashirnama of arrest of accused Irfan Ali. PW-08 Mashir HC Abbas Ali who produced roznamcha entry and mashirnama of arrest of accused Irfan Ali. PW-09 Mashir H/C Hubdar Ali. PW-10 SIO/Inspector Syed Abdul Hakeem Shah who produced roznamcha entry. PW-11 Mashir H/C Mushtaq Ahmed. PW-12 ASI Mukhtiar Ali Unar who produced mashirnama of arrest and recovery from accused. PW-13 Mashir Nazir Ahmed Junejo. Thereafter, learned State Counsel closed the side of prosecution.
5. The appellants in their statements recorded under section 342 Cr.PC denied the allegations leveled against them by pleading their innocence. However, none of them examined on oath nor led any evidence in their defence.
6. The learned trial Court on evaluation of the material brought on record and hearing counsel for the parties convicted and sentenced the present appellants/accused vide impugned judgment, as discussed above.
7. It is contended by learned counsel for the appellants that there are material contradictions in the evidence of prosecution witnesses which have shattered the veracity of their evidence; that there is no recovery of any incriminating article from the possession of the appellants to show their involvement in the present case; that there is inordinate delay of 21 days in lodgment of F.I.R., which has not been plausibly explained by the complainant, thus due deliberation, consultation and false implication of the accused cannot be ruled out; that the learned trial Court acquitted the co-accused Shamroz and Irfan Ali having same set of allegations and thus lastly prayed that the case of prosecution is doubtful and the appellantsare entitled to their acquittal in the circumstances of case.
8. On the other hand, learned counsel for the complainant as well as learned D.P.G.for the State submit that all the witnesses have fully supported the case of prosecution and no major contradiction has been noticed in their evidence, therefore, learned trial Court finding the appellants guilty of the offence has rightly convicted and sentenced them by way of impugned judgment, which does not call for any interference by this Court, hence, the appeal filed by the appellants being meritless is liable to be dismissed.
9. Heard learned counsel for the parties and perused the material available on record with their able assistance.
10. The meticulous re-appraisal of material brought on the record is entailing that though the prosecution witnesses have tried to support the case of prosecution but their evidence when scrutinized deeply was found coupled with material infirmities/improbabilities. The incident took place on 28-04-2020 at 2.45 am in the night and the FIR was registered on 19-05-2020 with the delay of 21 days and the same has not been plausibly explained by the complainant, it has also come on the record that the complainant approached the police on the same day, obtained letter No. 201, dated 28-04-2020 and then appeared at hospital where he was examined by the doctor but he had not narrated the facts in respect of the offence to the police nor he informed the police about the names of the accused persons, which creates very serious doubt in the case of prosecution. The PW Imam Bux also admitted during the cross-examination that after the incident several villagers were gathered there to whom they informed about the incident but not disclosed the names of accused persons to them which itself reflects that complainant party had not identified the accused persons.The PW-2 Imam Bux also admitted during the cross-examination that they took information about the caste and parentages of the accused persons after committing of such dacoity by the accused persons.The Honourable Supreme Court of Pakistan in the case of Pervaiz Khan and another v. The State (2022 SCMR 393) has held that “There is another circumstance that according to prosecution the occurrence took place at 7 p.m. whereas the FIR was chalked out at 11:35 p.m. Although complainant claimed that he arrived in the hospital within one or one and a half hour but even then the report was lodged in the hospital at 11:15 p.m. There is no explanation as to why after reaching the hospital when both the deceased had succumbed to the injuries why they had not reported to the police and where this time was consumed, obviously this time was consumed for deliberation and consultation. This delay could not be explained by learned counsel for the complainant. There is another circumstance that although the dead body was available in the hospital and according to prosecution police also arrived at 11:15 p.m. and the documents of the dead bodies were prepared but postmortem were conducted on the following day i.e. 02.05.2008 at 5 and 6 a.m. So this delayed postmortem also indicates that till time the documents were not prepared and during this time the matter remained under consultation creating serious doubt regarding the prosecution case.”
11. The identification of the accused persons at the time and place of incident in the present case is also doubtful. Admittedly the incident took place at 2-45 am of the night and the complainant party after hearing the noise witnessed the incident on the bulb light and the bulb was not taken into possession nor the sketch/mashirnama of place of wardat reflects about the availability of the said bulb.Honourable Supreme Court of Pakistan in the case of Sardar Bibi and others v. Munir Ahmed and other (2017 SCMR 344) has held that “The source of light i.e. bulbs etc. was not taken into possession during investigation to establish that the witnesses who were allegedly at the distance of more than 100 feet could identify the assailants. So the identification of the assailants was also doubtful in such circumstances of the case.
In the case of Abdul Rahim v. Ali Bux and 4 others, (2017 P Crl. L J 228), Division Bench of this Court has held as under:-
“11. Record further reveals that the incident is alleged to have taken place in dark hours of the night and Complainant and PWs/eye-witnesses seen and identified the culprits/Respondents on 7 torch lights, but the said Torches were not produced in evidence, since the source of identification of the culprits is shown as torchlight, which as per verdicts of Superior Courts is weak type of source and unsafe to be relied upon. In this regard reference is made to the case of Hakim Ali, reported in 1996 PCr.LJ 231 (DB-Kar), and case of Aurangzeb, reported in 2008 PSC (Cr.).
12. The complainant had not produced any receipt in respect of the golden ornaments allegedly robbed and of the mobile phones nor did he give details of the cash amount that where from he obtained such amount and where it was available in the house at the time of robbery. Though the complainant in his evidence deposed that he produced the receipts before the investigating officer but the same were not exhibited by him or the investigating officer in evidence nor the same are available in the file. Even the handkerchiefs used by the accused persons to tie the hands of the complainant and his witnesses were not produced by the complainant nor were such recovered by the investigating officer.The complainant in the FIR or at the time of recording his evidence not deposed a single word that the accused persons used stair while entering in the house or at the time of their escape from the house nor the same has been deposed by the PW-2 Imam Bux, however the PW-3 Muhammad Muneer has deposed that all the accused persons entered in their house by putting stairs at the wall of their house, during cross-examination he stated that the stair was lying outside of their house but such stair was not shown to the SIO. They brought the said stair in their house which too reflects that none of the witnesses seen the incident and after 21 days they have implicated the present appellants in the case.The alleged recovery of the robbed articles from the accused persons is also doubtful as the mashir of recovery has not supported the version of police officials who are stated to be the witnesses of recovery from the accused persons on information. The PW-12 ASI Mukhtiar Ali deposed that he on information arrested the accused Aziz and Bashir after an encounter with the police party and recovered weapons and the robbed articles in presence of mashirs Nazir Ahmed and Qaimuddin and in their presence such mashirnama was prepared which they signed.The mashir PW-13 Nazir Ahmed deposed that he and Qaimuddin were available at hotel on 01-06-2020 where one police mobile came and the driver took them toward Sehwani Sarak, where other police personnel were available and shown them pistol, two gold rings in one bundle, one bundle in which six pairs of cloths were available and one repeater with four cartridges. He however during cross-examination stated that ASI Mukhtiar did not disclose the reason of taking them to some unknown place. The mashir had not deposed a single word in respect of an encounter in between the police and the accused persons in such circumstances the recovery shown by the police from the accused is doubtful.
13. It is a settled principle of law that no one should be convicted of a crime on the basis of presumption in the absence of strong evidence of unimpeachable character and legally admissible. Similarly, the mere heinous or gruesome nature of crime shall not detract the Court of law in any manner from the due course to judge and make the appraisal of evidence in a laid down manner and to extend the benefit of reasonable doubt to an accused person being indefeasible and inalienable right of an accused. It is also an established principle of law that an accused person is presumed to be innocent until and unless he is proved guilty beyond a reasonable doubt and this presumption of his innocence continues until the prosecution succeeds in proving the charge against him beyond a reasonable doubt on the basis of legally admissible, confidence-inspiring, trustworthy and reliable evidence. It has also been held by the Superior Courts that conviction must be based upon unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused. The rule of giving the benefit of doubt to an accused person is essentially a rule of caution and prudence and is deep-rooted in our jurisprudence for the safe administration of criminal justice. In common law, it is based on the maxim, "It is better that ten guilty persons be acquitted rather than one innocent person be convicted". While in Islamic criminal law it is based on the high authority of sayings of the Holy Prophet of Islam (Peace Be Upon Him): “Avert punishments (Hudood) when there are doubts” and “Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him [accused], let him have his way, because the leader's mistake in pardon is better than his mistake in punishment.” The Honourable Supreme Court has quoted probably the latter part of the last-mentioned saying of the Holy Prophet (PBUH) in case of AyubMasih v. State (PLD 2002 SC-1048)"Mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent." The same principle has also been followed by the Honourable Supreme Court of Pakistan in recent Judgment in case of Naveed Asghar and 2 others v. The State (PLD 2021 SC-600). It is also settled principle of law that if a single circumstance creates reasonable doubt in a prudent mind about guilt of the accused, then the accused will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in case of Tariq Pervez v. The State reported as (1995 SCMR-1345), wherein the Honourable Supreme Court of Pakistan has held 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 doubt. If there is any 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".
14. The sequel of above discussion is that the prosecution has miserably failed to establish the guilt against the present appellants beyond shadow of reasonable doubt. Consequently, the conviction and sentence awarded to the appellants by learned trial Court vide impugned judgment were set aside and the instant criminal appeal was allowed resulting to acquittal of the appellants.
15. Above are the reasons of my short order dated 24.03.2023, whereby the instant Criminal Appeal was disposed of accordingly.
JUDGE