IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Appeal No.S-25 of 2022
Appellant: Mashooque alias Kaat son of Rafique Ahmed Chandio.
Through Mr. Ghulam Sarwar Abdullah Soomro, Advocate
The State: Through Mr. Aitbar Ali Bullo, Deputy Prosecutor General, Sindh.
Date of hearing: 31.05.2023
Date of decision: 31.05.2023
JUDGMENT
ZULFIQAR ALI SANGI, J.:- Through this judgment I intend to dispose of instant criminal appeal, which impugns the judgment dated 19.04.2022, handed down by learned Additional Sessions Judge-I/MCTC, Dadu in Sessions Case No.186/2021 emanating from F.I.R. bearing Crime No.81/2021, for offence punishable under sections 25 of Sindh Arms Act, 2013 whereby the appellant has been convicted and sentenced to suffer R.I for five years and to pay fine of Rs.50,000/-, in default of payment of fine he shall suffer S.I for four months. The benefit of section 382-B Cr.P.C has also been extended to the accused.
2. The facts in a nutshell are that on 27.04. 2021 at about 2015 hours ASI Ali Bux Pitafi of P.S K.N Shah along with his staff left police station vide Roznamcha Entry No.19 for patrolling, when they reached at Kandichuki road near Achhi Masjid at about 2130 hours, they saw five armed persons standing on road with intention to commit robbery, who by presuming police vehicle to be private one signaled them to stop. The police party identified the accused through headlights of vehicle to be Mashooque @ Kaat, Mehboob Babar, Zahid Chandio, Hizbullah @ Hajjan Solangi and Gulzar Khushik, the police party disclosed their identity to accused and directed them to surrender, on which accused started straight firing upon them with intention to commit their murder in retaliation the police party also exchanged firing in their defence and directed them to surrender, meanwhile accused Mashooque @ Kaat while leaving the pistol on ground raised his hands up cried to save him while remaining accused made their escape good. The police party apprehended accused Mashooque @ Kaat and took the pistol in their possession, on checking its magazine was found empty. ASI conducted body search of accused Mashooque and recovered Rs.150/- in shape of three currency notes of Rs.50/- each from left side pocket of his shirt. The recovered weapon was sealed at spot and then ASI prepared such mashirnama in presence of mashirs HC Muhammad Siddique and PC Nazeer Ahmed. Thereafter accused and case property were brought at Police Station where FIR of this case was registered.
3. 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 establish the accusation against the appellant/accused, the prosecution examined in all two witnesses, who produced certain items and documents in support of their statements. Thereafter, learned State Counsel closed the side of prosecution.
5. Appellant/accused in his statements recorded U/S.342 Cr.PC, denied the allegations leveled against him by pleading his innocence stating therein that he has been implicated falsely by the police. 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 all the prosecution witnesses being contradictory have no credibility and thus cannot be relied upon without independent corroboration even the recovery of crime weapon is foisted upon the appellant. Summing up his contentions, the learned defence counsel submitted that the present accused has been arraigned in this case, which is discernible from the averments of the F.I.R. , 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 Deputy Prosecutor General for the State contends that all the witnesses have fully supported the case of prosecution and no major contradiction is noticed in their evidence, therefore, 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 the appellant being devoid of merits is liable to be dismissed.
9. I have 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 perusal of the 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. The broad features involved in this case are that the complainant and his witnesses during patrolling saw the present accused alongwith other co-accused who was allegedly standing near them with the crime weapon and made fires upon the police party but did not hurt anyone, which raised question in every prudent mind that the accused fired upon the police party with his weapon but did not cause any harm to any person or property. The complainant and other police officials identified the accused with his parentage and for which they have failed to furnish the source as to how they identified the accused with his parentage. Further the prosecution has failed to establish the safe custody of the pistol. No any witness in respect of the safe custody was examined nor was any record produced, which suggest that after the recovery where the pistol was. All these facts make the case of prosecution as doubtful. 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.”
11. 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)”.
12. Resulting upon above discussion, 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 instant criminal appeal is allowed; the conviction and sentence recorded against the appellant by way of impugned judgment could not be sustained, it is set aside and the appellant is acquitted of the charge. Appellant is present on bail, his bail bond is cancelled and surety discharged. Office is directed to return the surety papers to the Surety after proper verification and identification as per rules.
JUDGE
Manzoor