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IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Appeal No.S-65 of 2023
Appellant Ghulam Rasool
Alias Muhammad Punhal : Through M/s Safdar Ali G. Bhutto and
Chachar Mushtaque Ali Langah, Advocates.
The State : Through Mr. Ali Anwar Kandhro,
Additional Prosecutor General, along
with complainant SIP Tariq Hussain
Khoso.
Date of hearing : 22.12.2023.
Date of Judgment : 22.12.2023.
J U D G M E N T
Muhammad Saleem Jessar, J.- Through instant appeal, the appellant has called in question the Judgment dated 22.06.2023(impugned judgment) penned down by learned 1st Additional Sessions Judge, Kandhkot, in Sessions Case No.315 / 2021 (re: The State Vs. Ghulam Rasool @ Muhammad Punhal Chachar). This case is outcome of Crime No.45/2021, registered at P.S B-Section, Kandhkot, for offence under Section 23(i)(a), Sindh Arms Act, 2013. After recording evidence and determination of points, the trial Court convicted and sentenced the appellant to undergo R.I. for 14 years, and to pay fine of Rs.100,000/-. In case of default, the appellant was directed to undergo S.I. for three years more. However, the benefit of Section 382-B, Cr.P.C was extended to the appellant/convict.
2. According to the case of prosecution, on 08.09.2021, the appellant, being wanted in main cases Crime Nos.40/2021, u/s 302, PPC as well as Crime No.44/2021, u/s 324, 3534, PPC of PS B-Section, Kandhkot, was apprehended from his Otaq, on a tip-off, by a police posse of PS B-Section Kandhkot and an unlicensed Kalashnikov loaded with 20 live bullets in it’s magazine, therefore, he was booked in this case by complainant ASI Tarique Hussain Khoso on behalf of State.
3. A formal charge was framed against the accused, to which he pleaded ‘not guilty’ and claimed to be tried.
4. In order to prove its case, prosecution examined and relied upon the evidence of in all four witnesses i.e. complainant ASI Tarique Hussain, mashir PC Ghulam Rabbani Jinjh, HC Muhammad Hanif Soomro and WPC Akbar Ali Chandio. They exhibited several documents in their evidence.
5. In his statement u/s 342, Cr.P.C, the appellant/accused denied the prosecution case and claimed to be innocent. However, neither he examined himself on oath nor produced any witness in his defence.
6. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, trial Court vide impugned judgment convicted and sentenced the appellant / accused, as stated above. Against said judgment, the appellant has preferred instant appeal.
7. Learned counsel for the appellant submits that the offensive weapon was allegedly recovered on 08.9.2021 and was sent to the FSL Laboratory on 10.9.2021 i.e. with the delay of 02 days without any valid explanation. He further submits that the appellant has been acquitted in the main cases based on Crime No.40/2021, PS B-Section Kandhkot u/s 302, PPC as well as Crime No.44/2021, u/s 324, 3534, PPC of same police station and this being offshoot case, therefore, the appellant is entitled to be acquitted in this case as well.
8. Learned Addl. Prosecutor General does not support the impugned judgment and submits that since the appellant has been acquitted from charges of above-mentioned main cases, therefore, he has no objection for grant of instant appeal and acquittal of the appellant in this case in the light of dicta laid down in the cases reported as Manjhi v. The State (PLD 1996 Karachi 345) and Fida Hussain v. The State (2012 PCr.LJ 226).
9. I have heard learned Counsel for the appellant as well as learned APG appearing for the State and have perused the material available on the record.
10. There appear material contradictions and inconsistencies in the evidence of witnesses examined by the prosecution at trial. Complainant, who allegedly made recovery of crime weapon from the appellant, stated in cross-examination that the mashirnama was written by him on the bonnet of the vehicle; whereas mashir of recovery, namely, PC Ghulam Rabbani Jinjh, who was accompanying the complainant at the relevant time and had allegedly witnessed the recovery proceedings, stated in cross-examination that the vehicle was parked at the gate of Otaque at a distance of about 8/10 paces from the place where accused was apprehended and mashirnama was prepared in the Veranda of Otaq by sitting on cot where accused was arrested. This aspect of the case alone indicates that either the complainant was deposing falsely or the mashir had not witnessed the recovery proceedings. Another important aspect of the case is that the offensive weapon though was recovered from the appellant on 08.09.2021, but it was delivered at the FSL Laboratory on 10.09.2021 i.e. with the delay of 02 days and no plausible explanation has been furnished by the prosecution for such delay. In such circumstances, sending the weapon to the laboratory with such delay casts serious doubt upon the veracity of the prosecution case and it shows that either the weapon was not recovered from the possession of the appellant or the police had falsely implicated the appellant by maneuvering the weapon at the instance of complainant party of main case. In such circumstances, the report of Ballistics Expert, even though in positive, cannot be believed; rather, the very recovery of offensive weapon becomes highly doubtful.
11. It is an admitted fact on record that instant case based on crime No.45/2021 is the offshoot of main cases Crime No.40/2021 registered at PS B-Section, Kandhkot, u/s 302, 114, 148, 149, PPC (vide Sessions Case No.392/2021 re-The State v. Ghulam Qadir & others) as well Crime No.44/2021 of PS B-Section, Kandhkot, u/s 324, 353, 148, 149, PPC (vide Sessions Case No.342/2021 re-The State v. Ghulam Rasool @ Muhammad Punhal & another). The appellant has been acquitted from the charge of Crime No.40/2021 by way of compromise in terms of order dated 06.10.2023 passed by trial Court and was also acquitted from the charge of Crime No.44/2021 by way of judgment dated 44/2021 and in this context certified copies of order and judgment have been placed on record by learned Counsel for the appellant through statement dated 22.12.2023. When the appellant has been acquitted by way of judgment in the main case of police encounter by disbelieving the evidence same set of witnesses being recovery officer, mashir and the investigation officer; hence, propriety of law demands, the appellant should also be acquitted from the charge of instant case, which is offshoot of the above main case. In this connection, reference may be made to the case of Yasir Chaudhry Vs. The State reported in 2012 MLD 1315, wherein it was held by the Lahore High Court as under:-
“In the case reported as Manjhi v. The State (PLD 1996 Karachi 345) it has been held that when the accused has been acquitted in the main case, he would become entitled to acquittal in a case which is offshoot of the said case. Same is the position here, as the present lis is an offshoot of the main murder case, so, respectfully following the dictum laid down in the judgment supra, this petition is allowed and the application of the petitioner under section 249-A Cr. P.C. is accepted and the petitioner is acquitted from the charge in case F.I.R. No.17 of 2003 dated 12.1.2003 registered under section 7 of the Surrender of Illicit Arms Act No.XXI of 1991 with Police Station Civil Lines, Bahawalpur.”
12. Keeping in view above legal position, it can safely be held that the accused / appellant deserves his acquittal in this offshoot case as well.
13. For what has been discussed above, instant Criminal Appeal is allowed, the impugned judgment dated 22.06.2023, handed down by learned 1st Additional Sessions Judge, Kandhkot in Sessions Case No.315 of 2021 (re:The State Vs. Ghulam Rasool alias Muhammad Punhal Chachar), being outcome of FIR No.45/2021 registered at Police Station B-Section, Kandhkot, is set aside and the appellant is acquitted of the charge. The appellant shall be released forthwith, if his custody is not required in any other case.
JUDGE
Qazi Tahir PA/*