IN THE HIGH COURT OF SINDH, KARACHI

Criminal Jail Appeal No.28 of 2013

 

Present:      Naimatullah Phulpoto, J

 

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