IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Appeal No.S-105 of 2022

Present:

Mr. Justice Zulfiqar Ali Sangi.

Appellant: Munwar Ali son of Jadal Mirani

Through: Miss. Tahira Soomro, advocate for appellant

State through Syed Sardar Ali Shah, Addl. P.G.

Date of hearing : 04.12.2023

Date of decision : 04.12.2023

J U D G M E N T

Zulfiqar Ali Sangi, J.– The appellant/accused named above has filed instant Crl. Appeal, whereby he has impugned the judgment dated 14.11.2022, passed by Additional Sessions Judge (Hudood) Sukkur, in Sessions Case No.618/2022 (Re. The State vs. Munwar Ali Mirani & others) arising out of FIR No. 126/2022, offence u/s 324, 353 & 34 PPC, registered at P.S Abad, the appellant/accused was convicted and sentenced R.I for (05) years and to pay fine of Rs.100,000/- (One lac only) and in default of payment of fine to suffer S.I for two years more. Appellant/accused was also convicted and sentenced for the offence u/s 353 PPC R.I (01 year and to pay fine of Rs. 10,000/- (Ten thousand) and in default to suffer S.I for (03) months more with benefit of section 382-B Cr.P.C, hence he preferred the instant appeal.

2. Concisely per FIR lodged on 16.07.2022 at about 2030 hours (08.30 p.m) accused Munwar Ali Mirani, duly armed with pistol accompanied by two unknown accomplices launched a murderous assault at Police party by firing at them as well as used criminal force to deter them from discharging of their public duty and consequent thereto police party arrested him on the spot in injured condition and also recovered unlicensed pistol of 9-mm with magazine and 03 live bullets followed by sealing thereof and writing of memo on the spot giving rise to lodge FIR against them.

3. After usual investigation challan was submitted against the appellant/accused. After completing legal formalities, the trial Court framed charge against accused to which he pleaded not guilty and claimed to be tried.

4. The prosecution in order to prove the case has examined 04 witnesses; they have produced certain documents and items in support of their evidence. Thereafter, the side of the prosecution was closed. The appellant/accused was examined under section 342 Cr.PC, wherein he denied the allegations leveled against him and pleaded his innocence.

5. After hearing the parties and assessment of the evidence against the accused, trial Court convicted and sentenced the accused as stated above against the said conviction accused preferred this appeal.

6. Learned counsel for the appellant/accused argued that accused is innocent and has falsely been implicated in this case by the police to show their efficiency; that the alleged property has been foisted upon appellant/accused; that all the PWs are police officials and no independent corroboration in shape of private witness is brought on record and the place of incident is surrounded with populated area; that the evidence adduced by the prosecution at the trial is not properly assessed and evaluated by the trial Court which is insufficient to warrant conviction against the appellant/accused; that the judgment passed by the trial Court is preserve 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/accused; that the material contradictions appeared in the statements of prosecution witnesses on crucial points, but those have not been taken into consideration by the learned trial Court while passing impugned judgment. Lastly he prayed that the appellant/accused may be acquitted by extending him the benefit of doubt.

7. Conversely, learned APG appearing for the State opposed the appeal on the ground that prosecution has successfully proved its case against the appellant/accused beyond a reasonable doubt and all the witnesses including complainant/seizing officer have fully implicated the appellant/accused in their evidence recorded by the trial Court; that all the necessary documents including the entries of station diary, the memo of recovery and FIR have been produced; that the police officers are as good witnesses as comparison to the other if there is no any malafide or ill-will on their part to falsely implicate a innocent person; that during the cross-examination counsel had not shaking their evidence; that there are no major contradictions in the evidence of prosecution witnesses, lastly he submitted that appellant/accused was rightly convicted by the trial Court and prayed that appeal of appellant/accused may be dismissed.

8. I have heard learned Counsel for the appellant/accused, learned A.P.G for the State and have examined the record carefully with their able assistance.

9. On reassessment of the entire evidence produced by the prosecution, it is established that the prosecution had not proved the case against the appellant beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence.

10. As per the evidence of complainant recorded being PW-1 before the trial court at the time of encounter between them and accused the distance was about 20 to 25 feet, while as per evidence of PW-3 Dr. Muhammad Iqbal the injured sustained injuries at a short distance which may be less than 03 feet. Meaning thereby the ocular version is not supported by the medical evidence and the story in respect of the encounter is managed. Though it is alleged by the prosecution that appellant and co-accused who were alleged to be armed with weapons fired upon the police party but it is strange to note that neither police party received any bullet injury even scratch has not been received by them nor any vehicle belonging to police received any scratch in the said encounter. All these facts suggest that the complainant managed a false story against the appellant and no such incident was taken place. As regards to the recovery of crime weapon viz pistol from the appellant, and the empties from the place of incident after the reassessment of entire evidence produced by the prosecution I found that the same was not recovered and was foisted against the appellant. Moreover, the investigation in case in hand has been carried out in a casual and stereotype manner, without making an effort to discover the actual facts/truth. The property was sent to the chemical examiner through PC 1595 Ali Gul, who had not been examined by the trial court which clearly shows that safe transit to the chemical examiner has also not been established and the tampering with case property at Police Station could not be ruled out. The Division Bench of this court in the case of Muhammad Amir and others vs. The State (2020 MLD 1777), disbelieve the recovery of crime weapon and the encounter between the accused and the police in the case where accused was apprehended at spot along with crime weapon and also in injured condition and the injury was a result of fire arm by observing that (a) The crime weapon and the empties were sent for FSL after two days of the recovery. (b) The 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. (c) The 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 vs. The State (2018 SCMR 577). (d). The accused only received injury whereas neither any police personnel nor police mobile received any bullet when asserted by the police that accused made straight fires upon them from front side.

11. The evidence of police officials as has been discussed above required independent corroboration, which is lacking in the case in hand. In these circumstances and after an independent evaluation of evidence available on record, I am of the view that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt. It is settled law that the benefit of all the favourable circumstances shall be extended to the accused not as a matter of grace or concession but as a matter of right. Reliance is placed on the cases of Tariq Pervez vs. The State (1995 SCMR 1345), the Honourable Supreme Court has observed as follows:-

“It is settled law that it is not necessary that there should many circumstances creating doubts. If there is a single 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.

13. In view of the above, instant Criminal Appeal stands allowed. Consequent thereof, impugned judgment dated 14.11.2022 passed by learned trial court in Sessions Case No.618 of 2022, Re: State v/s Munwar Ali others, is hereby set-aside. Appellant/accused Munwar Ali is acquitted of the charge in F.I.R No.126 of 2022 of P.S. Abad, U/S 324,353 and 34 P.P.C. Appellant/accused is present on bail, his bail bond stands cancelled and the surety discharged. Office is directed to return the surety papers to the surety after proper verification and identification.

J U D G E

M.Ali/steno