HIGH COURT OF SINDH AT KARACHI

Criminal Appeals Nos.28 and 66 of 2014

Present: Naimatullah Phulpoto, J.

Appellants: Abdul Ghaffar son of Muhammad Hussain and Sadam Hussain son of Khuda Bux through M/s. Khan Zaman and Nisar Ahmad Metlo, Advocates

Respondent: The State through Mr. Abrar Ali Khichi, Assistant Prosecutor General Sindh.

Complainant Mushtaq Ahmed in person

Date of hearing: 21.08.2014

Date of announcement: 29.08.2014

JUDGMENT

NAIMATULLAH PHULPOTO,J.- Appellants Abdul Ghaffar and Fida Hussain were tried by Ms. Sarwat Sultana, learned VIII Assistant Sessions Judge, Karachi East for offences under sections 392/353/324/34 PPC. They were found guilty and vide judgment dated 27.01.2014 accused were convicted under sections 392 PPC for 5 years R.I. and to pay fine of Rs.50,000/- each and in case of default in payment of fine they were ordered to suffer SI for 2 months. Accused were further convicted under section 353 PPC and sentenced to two years R.I. and to pay fine of Rs.5000/- each, in case of default in payment of fine they were ordered to suffer SI for two months. Appellants were also convicted under section 324 PPC and sentenced to 7 years R.I. and to pay fine of Rs.50,000/-, in case of default in payment of fine they were ordered to suffer SI for two months. All the sentences were ordered to run concurrently. Accused were extended benefit of section 382(B) PPC.

2. By this single judgment I would like to dispose of both appeals as they arise out of the same judgment.

3. Brief facts of the prosecution case as disclosed in the F.I.R. are that on 15.08.2013 at 15:00 hours complainant along with his brother Ashfaq left for bank in Car No.AJY-118 for using the ATM. It is alleged that two motorcycles driven by young boys emerged there. They were armed with deadly weapons and by show of force they snatched cash of Rs.25,000/-, two mobiles from the complainant and from his brother PW Ashfaq cash of Rs.3000/-, two mobile phones were snatched. After commission of offence culprits were trying to run away, in the meanwhile, it is alleged that the police party of Korangi Industrial Area during patrolling reached there and heard hue and cry of the complainant party. Accused persons while seeing the police mobile started firing on the police with the intention to kill. Police party also fired upon the culprits in defence. Two accused persons succeeded to run away on a motorcycle, however, police caught hold two culprits at spot. On inquiry, the persons who were caught hold disclosed their names as Abdul Ghaffar son of Muhammad Hussain Magsi and Fida Hussain son of Sahib Khan. Police recovered from their possession two 30 bore pistols and empty magazines. Both the accused had no licenses for weapons carried by them. On interrogation accused who were arrested disclosed the names of their companions who succeeded to run away as (1) Sadam Hussain son of Khuda Bux and (2) Zubair Baloch son of not known. Mashirnama of arrest and recovery was prepared in presence of mashirs. Both the accused along with crime weapons and motorcycle were brought to the police station where F.I.R. was lodged by complainant Mushtaq Ahmed against accused vide F.I.R. No.542/2013 under sections 392, 353, 324, 34 PPC.

4. After usual investigation challan was submitted against accused Abdul Ghaffar, Fida Hussain and Sadam Hussain under the above referred sections.

5. Accused met the charge with denial and claimed to be tried.

6. At the trial, prosecution has examined the following witnesses:

1. PW-1 Complainant Mushtaq Ahmed at Ex-3. He has produced mashirnama of arrest and recovery at Ex-3/A, F.I.R. 3/B

2. PW-2 Raheem Bux.

3. PW-3 Waqar.

4. PW-4 Imdad Ali.

5. PW-5 Rajabddin.

6. PW-6 ASI Izat Khan.

7. PW-7 Ashfaq.

Thereafter prosecution side was closed.

7. Statements of appellants/accused Abdul Ghaffar, Sadam Hussain and Fida Hussain were recorded under section 342 Cr.PC at Ex-12, 13 and 14. All the accused have claimed false implication in the case and denied the prosecution allegation. Accused Fida Hussain and Sadam Hussain have deposed that PWs have deposed against them due to enmity. No evidence has been led by the accused in their defence and all the accused declined to give statement on oath in disproof of the prosecution allegations.

8. After hearing the arguments of learned counsel for the parties and assessment of the evidence trial Court convicted and sentenced the appellants as stated above. Appellants Abdul Ghaffar and Sadam Hussain have filed the appeals against their conviction and sentence. No appeal has been filed by convicted Fida Hussain.

9. Learned counsel for the appellants argued that complainant Mushtaq Ahmad has not implicated accused Abdul Ghaffar and Sadam Hussain at trial and evidence of police officials Waqar and Imdad Ali is not corroborated by some independent piece of evidence. It is also argued that there are material contradictions in the evidence of prosecution witnesses and prosecution story is highly doubtful. In support of his contentions, he relied upon the cases of Ghulamullah alias Kariri and another versus The State (2011 YLR 1058) and Traiq Parvez v. The State (1995 SCMR 135)

10. Mr. Abrar Ali Khichi, learned A.P.G., supported the impugned judgment and argued that complainant has given favourable replies in the cross-examination due to fear. He has submitted that evidence of the police officials is sufficient to maintain the conviction recorded by the trail Court.

11. After hearing the learned counsel for the parties I have gone through the evidence minutely.

12. Complainant Mushtaq Ahmed in his examination-in-chief has narrated the entire episode of the incident but in the cross-examination he has replied that,”I do not know whether the accused persons, namely, Ghaffar and Saddam are involved in this case or not. They may be the companion of accused Fida Hussain as accused Ghaffar was arrested on the spot with Fida Hussain.” In the view of such weak evidence of the complainant it was unsafe to rely upon his evidence for recording the conviction in this case.

13. PW Ashfaq, the brother of the complainant, was with him at the time of incident. He has deposed that accused Fida Hussain present in the Court is same, who pointed out pistol to him. Accused Saddam is also same but accused Abdul Ghaffar is not same. It appears that PW Ashfaq has not implicated accused Abdul Ghaffar, therefore, his evidence regarding co-accused requires close scrutiny. Moreover, his evidence is contradictory to the complainant on so many material points. Hence, no reliance can be placed upon his evidence without independent corroboration which is lacking in this case.

14. ASI Rahim Bux has deposed that on 15.08.2013 he along with his subordinate staff was on patrolling duty when they reached at National Refinery, complainant Mushtaq Ahmed went to police party and disclosed that 4 persons by show of weapons had snatched from him and his brother mobile phones and cash. Police chased the culprits who made firing upon the police, police also fired in self defence. Police succeeded to apprehend accused Abdul Ghaffar and Fida Hussain.

15. From the scanning of the evidence it is crystal clear that during encounter neither police officials nor accused received any injury in the incident. Even, no damage was caused to the police mobile/vehicle. Accused in their statements recorded under section 342 Cr.PC have claimed enmity with the police. Thus, prosecution story appears to be unnatural and unbelievable. It is the settled position of the law if there is slightest apprehension regarding prosecution case being not true, its benefit would go to the accused. In this case, despite encounter with sophisticated weapons none received injury from either side. Complainant has not implicated the appellants Abdul Ghaffar and Saddam Hussain. Evidence of another eye witness namely Ashfaq is contradictory to the evidence of the complainant on so many material points. He has also not implicated one of the culprits in the commission of offence. Place of incident was situated in thickly populated area, none from the public has been cited as witness in this case. In such circumstances, evidence produced by the prosecution did not attract a prudent mind to believe the same. So many dents have been noticed in the prosecution case, which created doubt in prosecution case. Reliance has been placed upon the above cited authority in which it is held as under:-

From the evidence of eye-witnesses it appears that medical evidence is conflicting with the ocular evidence. Medical evidence shows that deceased H.C. Abdul Nabi received injuries at distance of 7/8 paces, whereas eye-witnesses who are police officials stated that accused were at distance of 200-paces, 100-paces, and two kilometers, respectively, away from the police party. It is also admitted fact that there was paddy crop in the lands where the alleged encounter took place between .the accused and the police party and police party also had taken shelter of crop so also accused according to evidence produced by prosecution it is also admitted fact that the accused were not known previously to the witnesses. In the above circumstances, the identification of appellants is doubtful. The arrest of accused Ghulamullah alias Kariri is also doubtful; if the encounter had taken place as alleged by the prosecution then it might be possible that on one hand accused have to receive any injury at the hands of police, who were more than hundred in number and on the other side there were only to accused. It is also admitted fact that around the place of vardat there are villages of Kalhor and Brohi communities and the alleged encounter has taken place for more than three hours, but none person from the surrounding villages attracted to the scene of offence and the prosecution has failed to cite independent evidence for proving its case beyond any shadow of doubt. This fact also creates so many doubts in prosecution case. It is settled proposition of law that it is the prosecution to prove its case beyond any shadow of doubt and if a slight doubt is created in a prudent mind, then the benefit of that doubt is to be extended in favour of accused not as a matter of grace but as a right, as held in case of Traiq Parvez v. The State (1995 SCMR 135).

15. For the above stated reasons while relying upon above cited authorities, I have come to the conclusion that prosecution has failed to prove its case against the appellants Abdul Ghaffar and Saddam Hussain beyond any reasonable doubt. Finding of the trial Court is based on surmise and not on any solid evidence. Absolutely, there was no evidence on record to establish charge against the appellant/accused, therefore, benefit of doubt is extended to these two appellants. Consequently, Appeals Nos.28 and 44 of 2014 are allowed. Conviction and sentence recorded by the trial Court against accused Abdul Ghaffar and Saddam Hussain are set aside. The appellants are acquitted of the charge. Both the appellants shall be released forthwith if they are not detained in any other case.

JUDGE

Gulsher/PA