IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Crl. Jail Appeal No. S- 03 of 2023.
Appellant: Dodo son of Arab Shar (pauper appellant), through Mr. Amanullah Luhur Baloch, Advocate.
Respondent: The State, through Mr. Aitbar Ali Bullo, Deputy Prosecutor General.
Dates of hearing: 16.05.2023.
Date of the judgment: 16.05.2023.
Judgment
Zulfiqar Ali Sangi, J. This criminal appeal has been directed against the judgment dated 08.09.2022, passed by learned Additional Sessions Judge, Kashmore, in Sessions Case No.189/2022, whereby the appellant was convicted for offences punishable under Sections 324, 353, 147, 148 & 149 P.P.C., and has been sentenced as under:
(i) For offence under Section 324 P.P.C to undergo for the period of three months R.I. He shall also pay fine amount of Rs.1000/-; in case of default in payment of fine amount, he shall suffer one day S.I more.
(ii) For offence under Section 353 P.P.C to undergo for the period of one month R.I.
(iii) For offence punishable under Section 147, 148 and 149 P.P.C to undergo for the period of one month R.I with fine of Rs.1000/-, on each count. In case of default in payment of fine to undergo S.I for one day more.
2. All the sentences were ordered to run concurrently. The appellant was extended benefit of Section 382-B Cr.P.C.
3. The prosecution story, as depicted from para 2 of the impugned judgment, reads as under:
“On 06.06.2022 complainant namely H.C Bisharat Ali Domki took his subordinate staff and left the P.S with D.D entry No.29, at 2040 hours in police vehicle No. SPE-3281 for patrolling. During coruse of patrolling, when they reached at Thalho Minor, where he received spy information that a gang of armed criminals was coming from Soomar curve at 2200 hours, where they saw that five armed culprits namely, Dodo Khan armed with T.T pistol alongwith four unknown culprits who were armed with K.Ks and T.T pistols were standing there. The encounter took place between the police party and culprits, which lasted for about five minutes. Thereafter, four culprits fled away, while accused Dodo Shar was arrested on the spot in injured condition along with one unlicensed T.T pistol of 30-bore with magazine containing four live bullets of 30-bore. Hence this F.I.R.”
4. The investigating agency after usual investigation submitted challan of the case. The learned trial Court framed the charge against appellant, to which he pleaded not guilty and claimed trial. As such, the prosecution examined Complainant H.C Bisharat Ali Domki at Ex.6, who produced daily diary entry No.29, memo of arrest and recovery, copy of F.I.R, copy of entry No.31 and medical letter. Mashir P.C Muhammad Rasheed was examined at Ex.7, who produced entry Nos.35,05, and 46 respectively. I.O of the case SIP Nawab Khoso was examined at Ex.8, who produced memo of site inspection and entry No.47. Dr. Muhammad Umair was examined at Ex.9, who produced police letter, provisional medico legal certificate, x-rays film and final medico legal certificate. The learned Prosecutor closed the side of prosecution vide his statement at Ex.10.
5. The statement of appellant was recorded in terms of Section 342 Cr.P.C., in which he denied the allegations of the prosecution leveled against him and claimed his innocence and false implication in this case. However, neither he examined himself on oath nor led any sort of evidence in his defence.
6. After hearing the parties, the trial Court passed the impugned judgment dated 8th September, 2022, thereby convicting and sentencing the appellant as stated above, who has preferred the instant criminal appeal.
7. Mr. Amanullah Luhur Baloch, learned counsel for pauper appellant has argued that the judgment of the trial Court is against the law, facts and equity and liable to be set-aside; that the trial Court has failed to appreciate the factual as well as legal aspects of the case while convicting the appellant. He next argued that the evidence adduced by the prosecution at the trial is not properly assessed and evaluated by the trial Court and the evidence is insufficient to warrant conviction of the appellant. He further added that no independent witness was examined and the witnesses examined at trial were interested being colleagues to each other and they contradicted each other on very material points; that the prosecution case is full of material contradictions and discrepancies. Learned counsel further contended that the impugned judgment suffers from mis-reading and non-reading of evidence. Lastly, he contended that defence has created so many doubts in the prosecution case and benefit of which may be extended in favour of the appellant by setting-aside the impugned judgment and ordering acquittal of the appellant.
8. On the other hand Mr. Aitbar Ali Bullo, learned Deputy Prosecutor General opposed the appeal and contended that that the evidence produced at trial is natural and confidence inspiring; that the F.I.R is promptly lodged and name of the appellant was mentioned in the F.I.R; that the appellant was apprehended by police party on the spot in injured condition along with crime weapon and that ocular evidence is fully supported by medical evidence and there is also recovery of crime weapon from the possession of appellant with its positive FSL report. He further argued that the defence has failed to create dents in the prosecution case. No important material contradictions and discrepancies have been pointed out by the defence counsel. He further contended that prosecution has established its case beyond any shadow of doubt against the appellant and learned trial Court has rightly convicted the appellant. Lastly, he prayed for dismissal of the appeal.
9. I have heard learned counsel for appellant and learned D.P.G., and with their assistance minutely and carefully scanned the evidence.
10. It is pointed out that the appellant was convicted vide judgment dated 08.09.2022 and he preferred jail appeal on 25.01.2023, which is time barred and is not maintainable. Since the appeal preferred by the appellant is against his conviction, which is his statutory right and being pauper he was un-represented, therefore, the delay in filing the appeal is condoned in view of the case of Nazar Muhammad v. The State (2011 SCMR 1487) and Hafeez Machi and another v. The State (2022 Y.L.R Note 27).
11. I have scrutinized the evidence of all these prosecution witnesses carefully. Complainant H.C Bisharat Ali deposed that on 06.06.2022 he was posted at H.C at P.S Buxapur and on same date, he took his subordinate staff namely, P.C Muhammad Rasheed, P.C Janan Khan, P.C Sabir Ali, P.C Fida Hussain, DPC Hazar Khan and left P.S vide entry No.29 in police mobile for patrolling. In support of case he has produced on record the entry No.29. He further deposed that at Thalho minor they received information through spy that gang of criminals being armed with weapons was coming from Soomar curve along link road towards Indus Highway, as such they rushed to pointed place, where they found five armed persons and identified one of them to be Dodo Khan (appellant) armed with T.T pistol. He further deposed that they asked the culprits to surrender but they made straight firing upon them with intention to kill and they took positions and retaliated the firing; the encounter lasted for about five minutes. They advanced and encircled the culprits; they heard cries of one culprit who was saying his companions that he was injured in their firing. Thereafter the culprits leaving the injured on the spot went away. Complainant further deposed that they arrested the accused on the spot and found T.T pistol lying near to injured accused, which was taken into possession and on checking it was found containing four live bullets of 30-bore in its magazine. On inquiry, the injured accused disclosed his name to be Dodo Shar (appellant). The accused failed to produce license of the weapon. The pistol was sealed on spot under mashirnama with signatures of mashirs and such mashirnama was produced at trial. Complainant further deposed that injured accused was got medically examined from RHC Buxapur. PW/ P.C Muhammad Rasheed, who is eye witnesses of the incident and has also acted as mashir of recovery etc. has supported the case of prosecution in toto. He has deposed in the same line with complainant. Both the witnesses were cross-examined by the defence counsel but nothing favorable to appellant has been brought on record.
12. The version of the complainant and eyewitness has also been supported by the medical evidence of Dr. Muhammad Umair, who has deposed that on 06.06.2022 when he was posted as medical officer at RHC Buxapur, accused Dodo Khan Shar was brought by police of P.S Buxapur in injured condition along with letter No.515 for his medical treatment, examination and certificate, as such he examined him and found two injuries on his person and ultimately issued such medical certificate, which was brought on record and exhibited during evidence of medical officer. The injury on the person of accused are supported by the evidence of Dr. Muhammad Umair and such injuries are the MLC issued by him were not challenged by the appellant.
13. The Investigation Officer of the case SIP Nawab Khan also supported the prosecution case. He deposed that complainant H.C Bisharat Ali handed over him the case papers of the case along with case property and custody of injured accused Dodo Khan Shar for investigation purpose. He further deposed that he on pointation of complainant went for site inspection, where he secured empties/ shells; sealed the same on spot and prepared such mashirnama on spot with signatures of the mashirs; he also recorded statements of witnesses under Section 161 Cr.P.C and ultimately submitted challan of the case. The I.O produced on the record the relevant entries and the mashirnamas. His evidence was not shattered by the defence counsel during the cross-examination.
14. On re-assessment of the evidence, I, find that the prosecution has proved the charge against appellant beyond reasonable shadow of doubt, for the reasons that F.I.R was lodged promptly; the appellant was named therein with role of firing on police party with intention to kill them and in retaliation the appellant sustained injury, which has been confirmed by the medical evidence. The evidence of complainant is corroborated in all material aspects by PW/ eyewitness P.C Muhammad Rasheed. The crime weapon was recovered from the appellant on the spot at the time of his arrest and FSL report in respect of such weapon is in positive. There appear no major contradictions in the evidence of the prosecution witnesses. However, the learned counsel for appellant pointed out some minor contradictions in the evidence of above witnesses. In this context, it is observed that minor contradictions/ omissions in the evidence of eye witnesses are natural phenomena and no importance can be attached to such minor contradictions. It is also well settled law that minor contradictions, which do not effect the materiality of the evidence can be ignored. The reliance in this regard is placed on case of Zakir Khan v. State reported in 1995 SCMR 1793. According to prosecution, the appellant had received injuries on his person during the encounter and such ocular version also fully gets support from the medical evidence i.e. evidence of Dr. Muhammad Umair who examined and treated the injuries of the appellant and produced on record such medico legal certificate and x-ray films. The circumstantial evidence is also there, in shape of recovery of crime weapon i.e. T.T pistol from possession of the appellant on the spot just after some moments of incident. There is also recovery of empties/ shells of 30-bore pistol as well as empties of 7.62-bore from place of occurrence.
15. Worth to observe that the police witnesses are good and reliable as another witness, provided that no enmity exists between them and the accused. In this case no enmity has been suggested against any of police witnesses; as such the police had no reason to falsely implicate the appellant in a false case. The appellant has not even alleged any enmity against police witnesses in his statement recorded under Section 342 Cr.P.C; but he has simply stated that they are police officials, hence have deposed against him.
16. Thus, for the reasons discussed above, I find that the prosecution has proved its case against the appellant beyond a reasonable shadow of doubt in respect of the above offences for which he was convicted and sentenced vide impugned judgment. As such, the appeal fails and consequently stands dismissed.
Judge
Ansari