IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Appeal No.S-111 of 2011.
Appellant : Mouj Ali alias Mojoo Mazari, through Mr. Nisar Ahmed G.
Abro, Advocte.
Respondent : The State, through Mr. Muneer Ahmed Abbasi, Deputy
District Public Prosecutor.
Date of hearing: 16-03-2015. Date of Judgment: 16.03.2015.
J U D G M E N T.
NAIMATULLAH PHULPOTO, J.- Appellant Mouj Ali alias Mojoo, by caste Mazari, was tried by the learned Assistant Sessions Judge, Kashmore, in Sessions Case No.06/2011, re State v. Mouj Ali alias Mojoo Mazari, registered as crime No.159/2010 at Police Station Kashmore, for offences under Sections 324, 353, 427, 148, 149, PPC. After full-dressed trial appellant was found guilty and vide judgment dated 13.9.2011 he was convicted under Section 324, PPC and sentenced for 05 years R.I and to pay the fine of Rs.1000/-, in case of default in the payment of fine he was ordered to suffer R.I for 02 months more. He was further convicted under Section 353, PPC and sentenced for 02 years R.I and to pay the fine of Rs.500/-, in case of default in the payment of fine he was ordered to undergo R.I for one week. Appellant was further convicted under Section 427, PPC and sentenced for 06 months and to pay the fine of Rs.500/-, in case of default in the payment of fine he was ordered to suffer R.I. for one month more. All the sentences were ordered to run concurrently. Benefit of Section 382-B, Cr.P.C was extended to him.
2. Brief facts of the prosecution case as disclosed in the F.I.R are that on 22.6.2010 S.H.O Abdullah Awan of P.S Kashmore left police station alongwith his subordinate staff for arrest of appellant as he was wanted in crime No.27/2010 registered under Section 365-A, PPC at Police Station Kashmore. S.H.O gave call to the police officers of the district, who joined him for conducting raid at the Otaq of Ali Dad Mazari. Police party reached at the Otaq at 0900 hours and saw appellant Mouj Ali alias Mojoo alongwith two unidentified persons sitting on the cot. Other companions of accused Mouj Ali, namely, Saeed Ali, Sajan and Mehar Ali and 20/25 persons were sitting in the Otaq. It is alleged that one Ali Dad Mazari challenged to the police party and declared that accused Mouj Ali was his relative and he will not be arrested from the Otaq. It is the case of prosecution that accused fired upon the police party with the sophisticated weapons. Police also fired in the defence. Firing lasted for about 10 minutes. Thereafter, police returned back to police station, where F.I.R of this case was registered by SHO Abdullah Awan on behalf of the State.
3. After registration of the F.I.R, I.O arrested accused Mouj Ali alias Mojoo Mazari and a Kalashnikov with empty magazine were secured from his possession. On the conclusion of usual investigation challan was submitted against accused Mouj Ali alias Mojoo under the above-referred sections, in which co-accused Ali Dad, Mehar Khan, Saeed Ali and Sajan were placed in column No.2, whereas co-accused Rajo, Allah Rakhio, Basheer, Siddique and Haji Bashir, all by caste Shar were shown as absconders.
4. A formal charge against the appellant/accused was framed at Ex.05. Accused did not plead guilty and claimed to be tried. At the trial prosecution has examined PW-1 SIP/SIO Ziyad Ali Noonari at Ex.06, he produced attested copy of mashirnama of arrest of accused Mouj Ali alias Mojoo and recovery at Ex.6/A, PW-2 SIP/SIO Obhayo Khan Mirani at Ex.9, he produced mashirnama of place of incident at Ex.9/A, PW-3 PC Fateh Muhammad at Ex.10 and PW-4 complainant SIP Abdullah Awan at Ex.11, he produced copy of F.I.R at Ex.11. Thereafter, prosecution side was closed vide statement Ex.13.
5. Statement of accused Mouj Ali was recorded under Section 342, Cr.P.C at Ex.14, in which he claimed false implication and denied the prosecution case and stated that weapon has been foisted upon him. Accused Mouj Ali did not lead evidence in defence and declined to give evidence on oath in disproof of prosecution allegations. Thereafter, the trial Court after assessment of the evidence convicted and sentenced the appellant as stated above.
6. I have carefully heard Mr. Nisar Ahmed G. Abro, learned advocate for the appellant, Mr. Muneer Ahmed Abbasi, learned Deputy District Public Prosecutor and scanned the entire evidence.
7. In my considered view prosecution story is highly unnatural and unbelievable. It is the case of prosecution that there was firing for about 10 minutes with the sophisticated weapons from both the sides. None received injury in the incident. Even no mobile was hit. Accused in his statement recorded under Section 342, Cr.P.C has claimed enmity with the police officials. In these circumstances, it would be unsafe to rely upon the evidence of police officials without independent corroboration, which is lacking in this case. Moreover, trial Court has failed to provide fair opportunity to accused Mouj Ali to cross-examine P.Ws Ziyad Ali Noonari and Fateh Muhammad Jakhrani. Evidence of P.Ws Ziyad Ali Noonari and Fateh Muhammad Jakhrani reflects that accused Mouj Ali has cross-examined these witnesses himself. Trial Court keeping in view the circumstances of the case should have provided facility of the defence Counsel to the appellant on State expenses, but it was not done in this case. After recovery of the Kalashnikov and empties, there is nothing on the record that the same were sealed on the spot. The same were also not sent to the Ballistic Expert for report. Mere word of the police officials is not sufficient to record the conviction without independent corroboration.
8. For the above-stated reasons, I have no hesitation to hold that there are several circumstances in this case which create the doubt in the prosecution case. It is settled law that when the prosecution case is doubtful, its benefit must go to the accused. Reliance is placed upon the case reported as Tariq Parvez v. The State, (1995 S C M R 1345), in which following observations were recorded by the Hon’ble Supreme Court :-
“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.”
9. For the above-stated reasons, while relying upon the above cited authority, I have no hesitation to hold that the prosecution case is full of doubts. Therefore, this appeal is allowed, the conviction and sentence awarded to the appellant vide judgment dated 13.9.2011 passed by the learned Assistant Sessions Judge, Kashmore, is set aside and he is acquitted of the offence charged with. Appellant is present on bail, his bail bonds stand cancelled and surety is hereby discharged.
10. Above are the reasons of my short order dated 16.3.2015 passed in open Court, whereby instant appeal was allowed.
JUDGE
Qazi Tahir/*