IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Jail Appeal No.D-06 of 2024

Criminal Appeal No.D-13 of 2024

Present:

Khadim Hussain Tunio, J.

Irshad Ali Shah, J.

Appellants : 1). Tufail Ahmed s/o Badihal Banglani

2). Abdul Hameed @ Nango s/o Abdul

Haleem Lashari, and

3). Piyaro @ Saeed Rehman s/o Shahnawaz

Pitafi Banglani.

Through Mr.Abdul Hakeem Brohi, Advocate

The State : Through Mr. Shewak Rathore, D.P.G.

Date of hearing : 02.07.2024

Date of decision : 02.07.2024.

J U D G M E N T

IRSHAD ALI SHAH-J; It is alleged that the appellants with the rest of the culprits made preparations and/or assembled to commit dacoity and in that way, deterred the police party of P.S Thull, led by SIP Bashir Ahmed from discharging its lawful duty as a public servant by making fires at them intending to commit their murder and, thereafter, made their escape good leaving behind appellants Tufail Ahmed and Abdul Hameed alias Nango to be apprehended at the spot, who resisted to their arrest and as a result caused lathi blows to PWs HC Abdul Sattar and PC Zafar Ali, for which the present case was registered; they were charged for the said offence, to which they pleaded not guilty; subsequently, appellant Piyaro joined the trial; the charge was amended which they once again pleaded not guilty; the prosecution to prove the same examined in all five witnesses and then closed its side. The appellants in their statements recorded u/s.342 Cr.PC denied the prosecution’s allegations by pleading their innocence; they did not examine anyone in their defence or themselves on oath. On completion of the trial, the appellants were convicted for the said offence and sentenced to various terms of imprisonment spreading over ten years, with fine/daman; all the sentences were directed to run concurrently with the benefit of Section 382-B Cr.PC by learned Judge, Anti-Terrorism Court, Shikarpur, vide judgment dated 22.02.2024, which they have impugned before this Court by preferring two separate appeals; one through their counsel and the other through the jail, those are disposed of by way of single judgment.

2. It is contended by learned counsel for the appellants that the appellants are innocent and have been involved in this case falsely by the police after due maltreatment by picking them from their houses and have been convicted and sentenced by the learned trial Court based on an improper assessment of evidence, therefore, they are entitled to be acquitted by extending them the benefit of the doubt. In support of his contentions, he relied upon the case of Haji Rab Nawaz V. Sikandar Zulqarnain and 7 others (1998 SCMR-25).

3. Learned D.P.G for the State by supporting the impugned judgment, has sought dismissal of the instant appeals by contending that the prosecution has been able to prove its case against the appellants beyond the shadow of a doubt.

4. Heard arguments and perused the record.

5. It was stated by complainant SIP Bashir Ahmed and PWs HC Abdul Sattar and PC Zafar Ali that on the date of the incident they with the rest of the police personnel were conducting patrol through police mobile within the jurisdiction of P.S Thull; when they reached Darya Khan Chowk, they were intimated by a spy that certain culprits are coming from Kandhkot side intending to commit some offence; on such information, they proceeded to the pointed place. No independent person was associated by them to witness the occurrence which was expected to take place; such omission on their part could not be overlooked. It was further stated by them that when they reached near to M.J.Dayo Hotel on the road leading to Kandhkot, they found under the light of police mobile the appellants and others duly armed with weapons and lathies; they were asked to surrender on that they by taking shelter behind the road fired at them; such firing was retaliated. It proved to be ineffective in all respects though it was a straight one, therefore, the allegation of such firing is to be judged with doubt reasonably. It was further stated by them that they advanced towards the culprits and when were about to apprehend appellants Tufail Ahmed and Abdul Hameed alias Nango, they resisted by causing lathi blows to them (PWs HC Abdul Sattar and PC Zafar Ali). No lathi allegedly recovered was found stained with the blood which signifies a fact that those have been foisted upon them by the police. It was further stated that the said culprits also sustained lathi blows during a scuffle at the hands of their accomplices, who then made their escape good from the place of the incident. The appellants Tufail Ahmed and Abdul Hameed alias Nango then were taken to P.S Thull and were booked accordingly. As per PW/Dr. Habib-ur-Rehman, all the injuries sustained by said witnesses were bailable except one. It was stated by I.O/Inspector Ayaz Ahmed that on the investigation, he visited the place of incident, secured the empties, prepared such memo, and recorded 161 Cr.PC statements of PWs and then submitted challan of the case before the Court having jurisdiction. On asking, it was stated by PW HC Abdul Sattar that his 161 Cr.PC statement was written by WPC Yaseen, if it is so, then it prima facie suggests that the investigation on the part of said I.O/Inspector was only to the extent of the table. The table investigation could hardly be relied upon. The evidence of PW HC Muhammad Siddique is only to the extent that he took the property to the Forensic Expert. The evidence of PW LPC Baqa Muhammad is only to the extent that he kept the property in “Malkhana”. Their evidence is of little help to the case of prosecution. The appellants during their examination under section 342 Cr.PC had pleaded innocence; such a plea on their part could not be lost sight of in the circumstances of the case.

6. The conclusion that could be drawn from the above discussion would be that the prosecution has not been able to prove its case against the appellants beyond the shadow of a reasonable doubt.

7. In the case of Tariq Parvez Vs. The State (1995 SCMR-1345), it has been held by the Honourable Apex Court that;

“For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts---If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right”.

8. Having discussed above, the conviction and sentence awarded to the appellants by way of impugned judgment are set aside; they are acquitted of the offence for which they were charged; they shall be released forthwith, if not required to be detained in any other custody case.

9. Above are the reasons for our short order of even date, whereby the instant criminal appeals were allowed.

JUDGE

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