IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Appeal No.S-70 of 2012.
Appellant : Imran alias Kandoo Malak, through Messrs Athar Abbas
Solangi and Muhammad Hashim Soomro, Advoctes.
Respondent : The State, through Mr. Muneer Ahmed Abbasi, Deputy
District Public Prosecutor.
Date of hearing: 13-03-2015. Date of Judgment: 13.03.2015.
J U D G M E N T.
NAIMATULLAH PHULPOTO, J.- Appellant Imran alias Kandoo, by caste Malak, was tried by the learned Assistant Sessions Judge, Kashmore, in Sessions Case No.23/2012, re State v. Imran alias Kandoo, registered as crime No.04/2012 at Police Station Kashmore, for offence under Sections 324, 353, 399, 402, 148, 149, PPC. After full-dressed trial appellant was found guilty and vide judgment dated 27.6.2012 he was convicted under Section 324, PPC and sentenced for 05 years R.I and to pay the fine of Rs.2000/-, in case of default in the payment of fine he was ordered to suffer imprisonment for three months more. Appellant was further convicted under Section 353, PPC and sentenced for 02 years and to pay fine of Rs.2000/-, in case of default in the payment of fine he was ordered to suffer imprisonment for two months more. He was also convicted under Section 399, PPC and sentenced for 04 years and to pay fine of Rs.2000/-, in case of default in the payment of fine he was ordered to suffer imprisonment for three months more. Appellant was further convicted under Section 402, PPC and sentenced for 02 years and to pay fine of Rs.2000/-, in case of default in the payment of fine he was ordered to suffer imprisonment for two months more. He was also convicted under Sections 148, 149, PPC to pay fine of Rs.2000/-, in case of default he was ordered to suffer imprisonment 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 10.1.2012 complainant HC Muhammad Qasim of P.S Kashmore, left police station alongwith his subordinate staff vide roznamcha entry No.12, at 1100 hours for patrolling. During patrolling, he received spy information that nine culprits were standing on Gullan Faqeer link road with intention to commit some offence. On receipt of such information, they proceeded to the pointed place and reached there at 1230 hours, where they saw accused Imran alias Kando, Dilbar, Arbelo, Hakim, Muhabat and Miandad, whereas remaining three culprits were unidentified. All the accused persons were armed with Kalashnikovs. It is the case of prosecution that on seeing the police party, all the accused persons made straight fires upon them with intention to kill them. The police party alighted from their mobile and fired upon the accused in their self defence. After encounter for 10 to 15 minutes, all the accused made their escape good by taking shelter of watercourse. Thereafter, complainant went to police station and lodged the F.I.R on behalf of the State.
3. On the conclusion of usual investigation, challan was submitted against accused Imran alias Kandoo Malak under the above-referred sections, wherein all other accused persons were shown as absconders.
4. A formal charge against the appellant/accused was framed at Ex.04. Accused did not plead guilty and claimed to be tried. At the trial prosecution has examined PW-1 PC Riaz Gul at Ex.5, he produced memo of arrest of accused at Ex.5/A, PW-2 PC Muhammad Qasim at Ex.6, he produced attested copy of departure entry No.12 at Ex.6/A, copy of F.I.R at Ex.6/B, PW-3 PC Ehsan Ali at Ex.7, he produced memo of place of incident at Ex.7/A and PW-4 ASI Khan Muhammad Brohi at Ex.8. Thereafter, prosecution side was closed vide statement Ex.9.
5. Statement of accused Imran alias Kandoo Malak was recorded under Section 342, Cr.P.C at Ex.10, in which he claimed false implication and denied the prosecution case. Accused 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. Athar Abbas Solangi, learned advocate for the appellant, Mr. Muneer Ahmed Abbasi, learned Deputy District Public Prosecutor and scanned the entire evidence.
7. After hearing the learned Counsel and perusing the entire material on record, I have come to the conclusion that prosecution failed to prove its case against the accused beyond reasonable doubt, for the reasons that despite firing with the sophisticated weapons for about 10 to 15 minutes from both the sides no one received injury in this case. Even the police mobile was not hit by any bullet allegedly fired by the accused persons. Ingredients of Section 402, PPC are also not satisfied from the evidence, which is brought on the record. Arrival roznamcha entry is not produced in trial Court, which cuts the roots of the prosecution case. Learned trial Judge has convicted the appellant without appreciating the evidence in accordance with the settled principles of law. In these circumstances, it would be unsafe to rely upon the evidence of police officials without independent corroboration, which is lacking in this case. After arrest of the accused, nothing incriminating was recovered from him. 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 has failed to prove its’ case. Trial Court failed to appreciate evidence according to settled principles of law. Therefore, this appeal is allowed, the conviction and sentence awarded to the appellant vide judgment dated 27.6.2012 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 bond stands cancelled and surety is hereby discharged.
10. Above are the reasons of my short order dated 13.3.2015 passed in open Court, whereby instant appeal was allowed.
JUDGE
Qazi Tahir/*