IN THE HIGH COURT OF
SINDH, KARACHI
Criminal
Jail Appeal No.28 of 2013
Appellant: Muhammad Hanif son of
Muhammad Bux, through Mr. Abdul Rehman Rao, Advocate
Respondent: The State through Mr. Abdullah
Rajput, Assistant Prosecutor General Sindh
Date of hearing: 27.08.2014
Date of announcement: __.09.2014
J U D G M E N T
Naimatullah Phulpoto, J. :-- Appellants/accused Muhammad Hanif and accused
Sharafuddin were tried by Ms. Shagufta Siddiqui, learned II Additional Sessions
Judge, Karachi South, in Sessions Case No.400/2012, registered at P.S. Kalakot,
Karachi South. Appellant Muhammad Hanif and Sharafuddin were found guilty by
the trial Court. Both were convicted under section 353, 324, 34 PPC and
sentenced to 5 years R.I. and to pay fine of Rs.25,000/-
each and in case of default in payment of fine the accused were ordered to
suffer S.I. for one month more. Accused were extended benefit of section 382-B
Cr.PC. By this appeal, the appellant has challenged his conviction and sentence
before this Court.
2. Brief facts of the prosecution case as
disclosed in the F.I.R. are that on 27.03.2013 ASI Rahim Zeb along with his
subordinate staff, namely, PCs Mazhar Hayyat, Ramzan and driver Parvez left
police station for patrolling duty at 03:00 a.m. During patrolling ASI received
spy information that a Truck was approaching to the Lea Market. On such
information, police party followed Truck and it was stopped at Fateh Muhammad
Mashwani road in which accused persons were sitting in suspicious manner. Since
accused saw the police party they started firing upon the police from Truck.
Police also fired in self defence. After encounter, police encircled the Truck
and apprehended the accused persons. One accused had received injury in the cross
firing on his right wrist. Some accused succeeded in running away from the
scene of offence. It is alleged in the F.I.R. that accused Sharafuddin received
bullet injury on his right wrist. Other accused was caught hold,
on inquiry he disclosed his name as Muhammad Hanif. Police secured T.T. pistol
from the possession of accused Sharafuddin and one pistol having three rounds
was also recovered from possession of appellant Muhammad Hanif for which he had
no license. Cash of Rs.200/- was also recovered from accused Muhammad Hanif.
Mashirnama of arrest and recovery was prepared by ASI Rahim Zeb in presence of
mashirs. case property was sealed, accused and case property were brought to
the police station where F.I.R. was lodged against the accused on behalf of the
State vide Crime No.39 of 2012 under sections 353, 324, 186 and 34 PPC.
3. After usual investigation challan was
submitted against the accused persons under the above referred sections.
4. Charge under sections 324, 353, 34 PPC
was framed against accused Sharafuddin and Muhammad Hanif. Present appellant
was asked whether he pleads guilty or has any defence to make to which he
pleaded not guilty and claimed a trial. At the trial, prosecution examined
following witnesses:
(i)
PW
Muhammad Ramzan at Ex.7
(ii)
PW
Rahim Zeb at Ex.9
(iii)
PW Safdar
Ali at Ex.10
Thereafter, prosecution side was
closed by D.D.P.P. vide his statement at Ex-11.
5. Statements of appellant/accused was recorded under 342 Cr.PC at Ex-12, in which he claimed
false implication in this case and denied the prosecution allegations and
stated that weapon has been foisted upon him by the police. Accused has stated
that PWs have deposed against him as they are police officials. Accused did not
lead any defence and declined to give statement on oath in disproof of
prosecution allegation. In a question what else he has to say, he replied that he
is innocent and police has implicated him in this case falsely because of his
refusal to pay illegal gratification.
6. Trial Court, after hearing the learned
counsel for the parties and assessment of evidence, convicted and sentenced the
accused Muhammad Hanif and Sharafuddin. Accused Muhammad Hanif has filed the
appeal, challenging his conviction and sentence before this Court.
7. Learned advocate for the appellant mainly
contended that arrival and departure entries have not been produced by the
prosecution witnesses in the evidence. It is further contended that this was
the case of spy information in spite of that SIP failed to secure the
independent and respectable persons of the locality to make them as mashirs. It
is contended that prosecution case is highly doubtful. It is argued that
complainant in his evidence has deposed that on 17.03.2012 he was on duty from
08:00 P.M. to 08:00 A.M. and alleged incident took place at 0330 hours.
According to defence counsel 17.03.2012 date has been mentioned in the F.I.R.,
prosecution case is doubtful. He has further contended that in the mashirnama
of arrest and recovery date of incident has been mentioned as 17.03.2012 at
0345 hours. Lastly, he has submitted that no fire injury has been attributed to
the appellant nor he has received any injury in the incident and his false
implication cannot be ruled out. Learned advocate for appellant referred to the
statement of the accused in which plea has been raised that accused has been
involved falsely because of his refusal to pay illegal gratification to the
police. In support of his contentions he has relied upon the case of Harchand
and others versus the State (2005 MLD 946).
8. Mr. Abdullah Rajput, learned
Assistant Prosecutor General Sindh could not explain the date viz. 17.03.2012
and time viz. 0345 hours in the mashirnama of arrest and in F.I.R. He has argued
that nonproduction of arrival and departure entry would not be fatal to the
prosecution evidence. Evidence of police officials is as good as that of any
other citizen. He has supported the impugned judgment of the trial Court.
9. I have carefully heard the learned
counsel for the parties and scanned the entire evidence.
10. Complainant Rahim Zeb in his evidence has
deposed that on 17.03.2012 he was posted as ASI in P.S. Kalakot. On the same
date he was on duty from 08:00 P.M. to 08:00 A.M. He left for patrolling along
with subordinate staff where he received spy information and arrested the
present accused after encounter, it was 0330 hours. At 12:00 midnight date
changes, in spite of that, in the mashirnama of arrest and recovery as well as
in the F.I.R. date and time is mentioned 17.03.2014 at 0330 hours. Learned A.P.G.
has no reply for such ambiguity on the part of ASI Rahim Zeb. Apart from that
it was a case of spy information in spite of that ASI Rahim Zeb failed to
secure the presence of independent and respectable persons of the locality to
attest recovery. No satisfactory explanation has been given for such omission.
For satisfaction of the Court, departure and arrival entries have not been
produced in Court, which in the peculiar circumstances of the prosecution case
is fatal for the prosecution case. It is unnatural and unbelievable that there
was encounter with sophisticated weapons, not a single scratch was received by
the police mobile/vehicle. No injury was also received by the police officials
in the alleged encounter or to appellant. Learned advocate for the appellant
has rightly relied upon the case of Harchand and others versus the State
(supra), relevant portion of the same is reproduced as
under:
“8. Admittedly no
police officer or anyone else was injured in the incident. It is also admitted
position that neither empties were recovered from the place of Wardat nor the
same were produced in Court. P.W. Muhammad Yousif who claimed to be heading the
police party involved in the encounter has admitted in the cross-examination
that when we reached the place of occurrence there was no firing on the spot.
It has further been admitted by P.W. Muhammad Yousif that the police encounter
lasted for a short while. He admitted that the accused persons present in Court
had started shouting that they may not be killed as they were prepared to
surrender. He further admitted that the accused were seen by them as they had
raised their hands and their weapons were lying in front of them. This
statement of the complainant
was sufficient to show that the appellants voluntarily surrendered
before the police party and thus there was no question of deterring the police
party from discharging their duties or causing obstruction of the sort.
Admittedly the place of occurrence viz. banana garden was surrounded by
habitations but none of the private persons was associated to witness the
arrest of the accused or the recovery of the crime weapons. In the
circumstances, neither any encounter
has been proved
nor is there
any evidence to
show that an
attempt was made
on the police
party to commit
their murder. The prosecution has
miserably failed to
bring home the guilt of accused
persons. The judgment of conviction recorded by learned Special Judge was
devoid of material evidence and was bereft of cogent reasons. The same was
unsustainable and was liable to be set aside. The conviction cannot be
sustained merely on the basis of surmises.”
11. The concept of benefit of doubt to an
accused person is deep-rooted in our Country. For giving him benefit of doubt,
it is not necessary that there should be many circumstances creating doubts. If
there is a 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, as held by the
Honourable Supreme Court in the case of Tariq Pervez versus the State (1995
SCMR 1345). In the present case, there are several circumstances as discussed
above, which create reasonable doubt in the prosecution case.
12. On overall assessment of entire evidence in
the case and on considering of the surrounding circumstances, I am of the
considered vide that case of the appellant is doubtful in nature. Accordingly,
I extend benefit of doubt to accused and acquit him from the charge. The
conviction and sentence recorded against the appellants are set aside. The appellant,
who is in custody, be released forthwith if not required in any other case.
In the result the appeal is
accepted.
JUDGE
Gulsher/PA