IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Jail Appeal No.S -27 of 2021.

Appellant

(Nek Muhammad) : Through Mr.Asif Ali Abdul Razak Soomro,

Advocate.

The State : Through Mr. Ali Anwar Kandhro,

Additional Prosecutor General

Date of hearing : 13.3.2024.

J U D G M E N T

Muhammad Saleem Jessar, J.- Through instant appeal, the appellant has assailed impugned Judgment dated 11.4.2023 passed by learned 1^st Additional Sessions Judge/Special Judge for CNS Cases, Kandhkot vide Sessions Case No.24 / 2022 (re: The State Vs. Nek Muhammad Soomro) arisen out of Crime No.176 of 2022 of P.S A-Section Kandhkot registered for an offence under Section 9 (c) of C.N.S Act 1997, whereby after recording evidence and determination of points, the trial Court convicted and sentenced the appellant to undergo R.I. for nine years and pay fine of Rs.80,000/-. In case of default, the appellant was directed to undergo S.I. for two 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 12.06.2018, the appellant/accused already arrested in main case/Crime No.21 of 2018 under Sections 302, 324, 114 and 34 PPC, during interrogation confessed his guilt and agreed to produce crime weapon therefore, complainant alongwith his subordinate staff as well as accused proceeded from P.S to Chodagi, he picked private mashirs namely Malang and Ghulam Fareed and reached at the house of accused and at about 1500 hours accused Shahzado Shaikh produced one unlicensed pistol of 30 bore made in Pakistan concealed by him into heap of dust lying inside his house and further disclosed that he used the same pistol while committing murder of his wife Mst.Rasheeda/deceased of Crime No.21 of 2018 of P.S Mahi Makol. Mashirnama of recovery was prepared by ASI Munwar Ali Lahori while associating the private mashirs namely Malang and Ghulam Fareed. After exhausting codal formalities the accused and recovered crime weapon were brought back to Police Station where instant FIR was lodged on behalf of the State to the above effect.

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 Munwar Ali Lahori, mashir of place of incident PC Peeral Khan Chandio and PW/Private Mashir Ghulam Fareed. 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. We have heard learned counsel for the appellant, learned APG for the State and perused the material brought on record.

8. Learned counsel for the applicant contended that appellant Shahzado Shaikh was already in custody in main case and it is falsely alleged that he himself produced from his house which was allegedly used by him while committing offence as reported in the main case, however, appellant in his statement U/S 342 Cr.P.C has denied the allegation of producing crime weapon from his house. He asserted that crime weapon was not recovered from exclusive possession of the appellant and as alleged by the prosecution. He further contended that crime weapon was sent to chemical examiner after delay of 7 days and incharge Malkhana was also not examined, thus such recovery of crime weapon can not be warrant conviction as on the face of it has been foisted upon appellant falsely in order to strengthen main case. Besides in the main case, same appellant Shahzado Shaikh has already been acquitted by way of compromise accepted by this Court , therefore, he is entitled to be acquitted in this case being offshoot of the main case.

9. Learned Additional Prosecutor General Sindh appearing for the state, when confronted with the above legal position in the light of acquittal of accused/appellant in main case, recorded no objection to his acquittal in this offshoot case.

10. In the main case, appellant Shahzado Shaikh filed Cr. Jail Appeal No.D- 69 of 2020 vide Sessions Case No.261/2018, re-The State v. Shahzado Shaikh and others arisen out of Crime No.21/2018, registered at P.S Mahi Makol, for offences under Sections 302, 114, 34 PPC, which was fixed today, has been acquitted of the charge by way of compromise. The legal position in such a situation, as enunciated by the Superior Courts, is that when an accused has been acquitted in the main case, he would be entitled to acquittal in a case which is offshoot of the 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 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 case 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.”

11. Besides, it is also crucial to note that in the instant case ASI Munwar Ali has acted on three counts i.e. Author of FIR, Complainant as well as Investigating Officer of the instant case. Under the law, complainant and accused are two opponent parties. In other words, they are two contesting parties. Role of an Investigating Officer is of a neutral authority whose object is to unearth the truth. The Investigating Officer cannot be a part or a member of a party in a case which he is investigating. In this regard, guidance may be sought from Chapter 25 of Investigation from Police Rules, 1934. Rule 25.2(3) reads as under:---

"It is the duty of an Investigating Officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person."

12. The language of Rule 25.2(3) above noted clearly requires of an Investigating Officer not to commit himself prematurely to any view of the facts for or against any person. This cannot be expected from an Investigating Officer who himself is a party. As a matter of fact, concept of honest investigation is based on non-partisanship and neutrality. The reason and spirit of separating investigation wing from the operation wing of police also emanates from the same fact which reflects in Article 18 of the Police Order, 2002, therefore, we feel that element of honest, transparent and fair investigation lacks in the instant case.

13. Investigating Officer is an important witness for the defence also and in case he acts as a complainant and investigating officer, the defence is deprived of his very precious right at the same time and is forced not to depend upon the same. In the case of Nazir Ahmad v. The State (PLD 2009 Kar. 191) a Division Bench of this Court held as under:

“Officer who is himself complainant in the case can not be expected to collect and preserve evidence which goes against his case. Such investigating officer can not properly perform duties of an independent and fair investigating officer.

15. Perusal of report of Chemical Examiner reveals that one 30 bore pistol alongwith one 30 bore crime empty were received by Incharge Forensic Science Laboratory, Forensic Division, Larkana on 19.6.2018 i.e. after delay of 7 days of alleged recovery of crime weapon and for such delay no plausible explanation has been furnished by the prosecution and besides nobody from malkhana was examined by the prosecution, creating serious dent into the prosecution case with regard to the safe custody of crime weapon which was required to be sent to the Chemical Examiner immediately after recovery. In these circumstances, such recoveries are also inadmissible in evidence and cannot be relied upon to sustain conviction of the appellant.

16. In the case of “Muhammad Akram v. The State” (2009 SCMR 230), it is held by hon’ble Supreme Court as under:-

“It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favor of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.

17. In view of above discussion coupled with the no objection recorded by learned Addl. P.G, instant appeal is allowed. Conviction and sentence recorded against the appellant by learned trial Court vide impugned judgment dated 02.3.2024 is set aside. Appellant Shahzado Shaikh is acquitted of the charge. He shall be released forth with if not required in any other custody case.

JUDGE