IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Appeal No.S-10 of 2023
Appellant: Sher Ali son of Jumo Khan Mazari
Through Mr. Pardeep Kumar B. Butani,
Advocate
The State: Through Mr. Shavak Rathore, Deputy Prosecutor General, Sindh.
Date of hearing: 06.04.2023
Date of decision: 06.04.2023
JUDGMENT
ZULFIQAR ALI SANGI, J.:- This criminal appeal impugns the judgment dated 20.01.2023, handed down by learned Additional Sessions Judge, Kashmore in Sessions Case No.291/2022, emanating from F.I.R. bearing Crime No.92/2022, for offence punishable under sections 399, 402, 148 & 149 P.P.C., registered with P.S. Kashmore whereby the appellant has been convicted and sentenced in multiple sections to suffer R.I for one year and one month with fine of Rs.3000/- and Rs.2000/- respectively; in case of default in payment of fine to suffer S.I for one week more with benefit of section 382(b) Cr.P.C.
2. The allegations against the present appellant/accused are that he alongwith reset of the accused in furtherance of their common intention made unlawful assembly for the purpose of committing dacoity duly armed with deadly weapons near protective band, Kharore curve, Kashmore and while seeing police party ran away.
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 three witnesses, who all produced certain documents 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 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 there is no recovery of crime weapon. 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. 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 while on patrolling saw nine armed persons with intention to commit dacoity in the area and according to the prosecution they all ran away seeing police party, even not a single fire has been made by either party, which raised question in every prudent mind that nine persons who came for committing some offence have not caused any harm to any person or property. Further at or near the place of incident there was no any bank, petrol pump, shopping centre or anything from where dacoity was to be committed. The complainant and other police officials identified all the accused with their parentage and for which they have failed to furnish the source as to how they were identified with their parentage. The perusal of record further depicts that there is no previous criminal record of the appellant accused in order to believe the implication of the appellant in this case. The prosecution witnesses depose in their respective evidence that on the said date no any offence was committed in the area by anybody then how the complainant felt that the appellant with rest of the accused was roaming in the area with intention of committing dacoity. All these facts make the case of prosecution as doubtful.
11. It is settled that the Court(s) must never be influenced with severity of the offence while appreciating evidence for finding guilt or innocence because severity of an offence could only reflect upon quantum of punishment. Therefore, even such like tragic cases, the Courts are always required to follow the legally established position that it is intrinsic worth and probative value of evidence which plays a decisive role in determining the guilt or innocence and not heinousness or severity of offence. Reliance can be placed on the case of Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274). The rule of benefit of the doubt is essentially a rule of prudence which cannot be ignored while dispensing justice following the law. The conviction must be based on unimpeachable evidence and certainty of guilt and doubt arising in the prosecution case must be resolved in favour of the accused. The said rule is based on the maxim. "It is better that ten guilty persons be acquitted rather than one innocent be convicted" which occupied a pivotal place in the Islamic Law and is enforced strictly because of the saying of the Holy Prophet (PBUH) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent". It is well settled by now that the prosecution is bound to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty is casted upon the accused to prove his innocence. It has also been held by the Honourable Superior Courts that the conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In case of Wazir Mohammad v. The State (1992 SCMR 1134), it was held by Honourable Supreme Court that "In the criminal trial it is the duty of prosecution to prove its case against the accused to the hilt, but no such duty is casted upon the accused, he has only to create doubt in the case of prosecution. "Honourable Supreme Court in another case of Shamoon alias Shamma v. The State (1995 SCMR 1377), held that "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against accused, entitles him/them to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case. Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise. "Reliance is also placed on case of Naveed Asghar and 2 others v. The State (PLD 2021 SC 600).
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. 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 him 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