Cr. Appeal No. 346 of 2016
Date Order with Signature of the Judge
For hearing of case.
{a/w one R&P}
18th May, 2017.
Mr. Mamoon A. K. Sherwani, Advocate a/w appellants on bail.
Ms. Rahat Ahsan, Deputy Prosecutor General, Sindh.
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Syed Muhammad Farooq Shah, J.:- The instant appeal has been preferred under Section 410 Cr.P.C. against the impugned judgment dated 04.10.2016, passed by learned IInd Additional Sessions Judge, Thatta, whereby the appellants were convicted under section 324 P.P.C. sentenced them RI for three years and fine of Rs. 10,000/- each, in default whereof to suffer SI for one month further convicted and sentenced under section 353 PPC for one year RI and also convicted for six months under section 504 PPC; however, benefit of section 382-B Cr.P.C. was extended to the accused. Through the captioned appeal, the appellants have prayed to set aside the impugned judgment on the facts and grounds averred in the memo of appeal.
2. Facts of the appeal in hand, succinctly stated are that complainant Kamran Ali, Chowkidar at Civil Court Gharo, on 15.12.2014, lodged an FIR at Police Station Gharo, Thatta stating therein that he was performing his duties along with PCs Noor Muhammad and Ali Asghar as guards, at about 07:00 p.m. accused Imtiaz having pistol and Amir came out from their house situated near the court, and used filthy language by saying that you being Chowkidar is a witness against him, then accused Imtiaz Lashari made a straight fire upon him, he fallen down in order to save himself from the fire and then rushed inside the Court; meanwhile the police official on duty quickly came there and tried to fetch them but accused persons fled away inside their house; thereafter complainant appeared at Police Station and lodged the FIR. On completion of usual investigation, the appellants were charge sheeted under section 173 Cr.P.C.
3. On commencement of trial, the appellants, pleaded not guilty to the charge and claimed their trial.
4. Prosecution evidence has carefully been scanned. At the trial, prosecution examined PW-1/Complainant Kamran Ali who supported the contents of FIR to some extent but in cross-examination he has admitted that “I am witness in Crime No.83/2014 and Ali Akbar Brohi who was Reader of Civil Court Gharo at that time, is complainant of that crime/case.” Further stated that “Crime No. 83/2014 was registered as there was dispute over plot of the Court with the mother of accused persons. It is correct to suggest that present accused persons are also accused in Crime No. 83/2014. It is correct to suggest that in Crime No. 83/2014 accused persons were acquitted by the concerned court.” He has further stated that “it is correct to suggest that at the evening the peoples usually remain present there. I was at the distance of 20 feet from court building when accused persons started abusing me and they were standing at the distance of 50 feet from the court; the house of accused persons is situated at northern side and they came from their house before going to Police Station for lodging the FIR I did not inform any officer of the Court. I alone went to Police Station for lodging the FIR by feet. It is correct to suggest that one of Mashirs is my cousin and other is relative. Mashirs came themselves at the place of incident as their houses are at the distance of 100/150 feet from the place of incident. It is correct to suggest that my house and the houses of Mashirs are situated on back side of the court. It is correct to suggest that empty of T.T. Pistol, recovered from the place of incident, is not present today in the Court.” It is correct to suggest that “C.P. for quashment of FIR is pending before the Hon'ble High Court of Sindh.”
5. PW-2 Noor Ahmed who was allegedly performing his duty as Security Guard stated that, “accused persons already have dispute over the construction of plot of Court building and complainant was a witness in that case. Both accused tried to commit Qatl-e-Amd of complainant.” However, in cross-examination he has stated that “he know the complainant since the year 2013 and he is being posted in the court since 2013.” He further stated that “it is correct to suggest that prior to this incident, case regarding plot of Court was pending in the Court. It is correct to suggest that both accused are police constables. I do not know if accused Imtiaz is residing at Niazi Colony and accused Amir is residing in Khaskheli Mohallah.” Voluntarily says that “they are residing in one and same boundary and I do not know that there are separate houses of accused persons or not. It is correct to suggest that near the shop their houses are situated. On fire shots people came out from their houses but did not come at the place of incident. When accused person were abusing the complainant we were present inside the court. On the commotion we came out of court building. It is correct to suggest that prior to this court Reader of Civil Court Gharo Ali Akbar Brohi lodged FIR against the present accused in which complainant was shown as witness. It is correct to suggest that in that case accused persons were acquitted by the court. At the time of visiting the place of incident by the police I was not present there.”
6. PW-3 namely Mazhar Iqbal, who conducted the investigation, stated in his cross-examination that, “he is second Investigating Officer of the case and on the orders of S.S.P. he became Investigating Officer of this case.” He has further stated that “it is correct to suggest that I have not produced such letter before this Court.” Voluntarily says that “same is lying in the police papers. It is correct to suggest that both accused persons are police officials. It is correct to suggest that I have not mentioned make, model and colour of vehicle in memo of arrest of accused Amir. It is correct to suggest that Ari Camp Gharo is after the Police Station Gharo. It is correct to suggest that I have not kept such entry at Police Station Gharo.” Voluntarily says that “I verbally informed to SHO at 10:00 a.m. we left Chairman hotel at 11:55 a.m. It is correct to suggest that it is not mentioned in the memo of arrest that we left chairman hotel at 11:55 a.m. It is correct to suggest that place of arrest is situated at National Highway where traffic runs round the clock. Accused was standing at left side of the road at Ari stop. It is correct to suggest that near place of arrest there is link road. It is correct to suggest that I have not mentioned in my examination-in-chief that Mashirs were called by the complainant. Mashirs were called earlier at Gharo Town by complainant before our arrival. Complainant and Mashirs were came at the place of arrest by motorcycle. I do not know if mother of accused persons filed civil suit prior to lodging of this case. It is correct to suggest that on dispute of that civil case this criminal case is lodged as this incident took place in the consequence of that civil case. I do not know if mother of accused persons filed C.P. before the High Court.”
7. PW-4, Muhammad Zubair, who acted as Mashir of place of occurrence and recovery of one empty of T.T. Pistol on next day of alleged occurrence, stated that, “complainant is my cousin. It is correct to suggest that complainant is also co-Mashir. I was working at the distance of 10 Sq. Yards from the place of incident. It is correct to suggest that there are shops and houses near to the place of incident. It is correct to suggest that civil Court Gharo is under construction. The gun empty recovered by the police from the place of incident; the main gate of court is on western side and back of the court is at the eastern side. Police recovered the empty in my presence; police obtained my signature on one paper. ASI sealed the parcel and thereafter written the Mashirnama. I do not know from where police constable brought the cloth for sealing the parcel. I do not know that how much sealed affixed on the sealed parcel by the police.”
8. PW-5 Nazar Muhammad author of the FIR, conducted the investigation stated in his cross examination that “it is correct to suggest that it is not mentioned in the Mashirnama that I captured picture from mobile phone. I went to place of incident through motorcycle. I along with two constables and complainant went to the place of incident for inspection. We were on two motorcycles. The distance between Police Station and place of incident is half kilometer. No one was present there except watchman Kamran Ali. Peoples were available near the place of incident. I called both Mashirs myself. The cloth in which empty was sealed was available in investigation box. I do not know that Mashirs are relatives of complainant. It is correct to suggest that complainant and Mashirs are residing in revenue colony Gharo. It is correct to suggest that accused persons are police constables and one accused Imtiaz was posted at Police Station Gharo at that time.”
9. Arguments advanced by the learned counsel for the appellant and deputy Prosecutor General, Sindh are considered. I have also gone through the material including the impugned judgment.
10. Learned Counsel representing the appellants submitted that there are material contradictions among the depositions of prosecution witnesses, more particularly in their cross-examination, which cannot be brushed aside, as cross examination is a valuable right guaranteed by the legislature to challenge the veracity of a witness and under Article 133(2) of Qanoon-e-Shahadat Order, 1984, as cross-examination is not limited to the facts, which a witness has stated in his examination-in-chief. He further argued that trial court only believed one sided version of the prosecution; except the complainant as all remaining prosecution witnesses are police officials and relative of the complainant; the recovered empty of T.T. Pistol recovered from the place of incident was never sent to ballistic expert for his opinion and was also not produced before the trial court by the prosecution. The incriminating weapon has also not been recovered. Lastly, he contended that appellants are innocent and have falsely been implicated in the above case due to enmity and prayed that impugned judgment being not sustainable in law be set aside and appellants may be acquitted.
11. On the other side, Ms. Rahat Ehsan, learned DPG could not controvert the aforementioned submissions of learned Counsel for the appellant, being matter of record; however, she supported the impugned judgment.
12. A perusal of statement of accused recorded under section 342 Cr.P.C. does not transpire that as to whether the appellants were confronted with the alleged recovery of empty bullet. However, they have vehemently denied the prosecution evidence and claimed their innocence. Accused Imtiaz stated that at the time of alleged incident he was in district Malir and produced such entry. They have also examined DW Yasir who stated that accused Imtiaz prayed Jumma prayers with him and accused Amir came at his house after Jumma prayer for attending the ceremony of his sister. It is an admitted position that the complainant Reader of the said court had earlier lodged FIR No. 83/2014 at Police Station Gharo under 447,457/34 PPC against the present appellants and one Fouji Baqar Hussain regarding the incident occurred due to dispute over a plot wherein it was alleged that they have committed lurking house trespass, house breaking, criminal house trespass by entering Civil Court Sakro and Gharo and occupying the same port of court plot and after full dressed trial, by considering the cross-examination of prosecution witnesses the Civil Judge and Judicial Magistrate by pronouncing the judgment dated 19.01.2016 acquitted the accused/appellants and copy of same was placed on record by the accused as annexure ‘J’. FIR in the instant case was lodged by the Chowkidar of the said Civil Court. Astonishingly, aforementioned cross examination besides animosity and bitter acrimonious relations in between the parties over disputed plot have not been thoroughly examined resulting culmination of impugned judgment and conviction of appellants.
13. It needs not to be reiterated that Article 133 of Qanun-e-Shahadat Order 1984 postulates that witnesses shall be examined in chief and the party calling him suggest of his claim and the adverse party to cross-examine the witnesses. Article 133(2), reads as under:
“(2) The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witnesses testified on his examination-in-chief.”
14. The impugned judgment does not reflect that the trial Court has gone through the elaborate cross-examination of prosecution witnesses; more particularly cross of the ocular account, brought by the prosecution on record. It is not out of context to mention here that cross-examination is the great legal engine invented for the discovery of truth. Opportunity to cross-examine contemplated by the law must be real, fair and reasonable. Cross-examination was not an empty formality, but a valuable right and best method for ascertaining the truth. The right of cross-examination has from times immemorial been held to be particularly in criminal cases a valuable right to the accused. It is a weapon which an accused person or an Advocate on his behalf can wield for the purpose of testing the veracity of the statement made by a witness.
15. The contradictions among PWs and discrepancies, mentioned supra, cannot be considered of minor nature. The concept of benefit of doubt to an accused person is deep routed in our country. The prosecution was duty bound to prove its case beyond the shadow of reasonable doubt and if any single or slightest doubt is created, benefit of same must go to the accused and it would be sufficient to disbelieve the prosecution story. It is settled law that benefit of doubt would go to the accused, regardless of fact whether he had taken such plea or not. If need arises, reliance may conveniently be placed on the case of Tariq Pervaiz vs. The State 1995 SCMR 1345; Muhammad Akram’s case 2009 SCMR 230 and Faryad Ali case 2008 SCMR 1086. Keeping in view the afore-stated peculiar facts and circumstances; more particularly, the cross examination of witnesses of the prosecution, create reasonable doubts in a prudent mind about the guilt of the accused, therefore, it is a fit case in which the accused is entitled to the benefit of doubt not as a matter of grace but as a matter of right as there being no satisfactory basis for upholding the conviction and sentence of the appellants.
12. A perusal of impugned judgment further reveals that learned trial court acted in oblivion of principles of appreciation of evidence in criminal trial to evaluate it and discover the probabilities with regard to the conviction of the accused. Suffice is to say that from material on record, the version of prosecution without corroboration adversely affects the credibility of prosecution witnesses testimony. It needs not to be reiterated that keeping in view the judicial wisdom, experience and while balancing the judicial conscious justice should be dispensed with according to the law and not to the whims and caprice or subjective standard of trial judge in the overall context. The depositions of prosecution witnesses are totally inconsistent with the safe administration of justice. There are so many circumstances, discussed above creating serious doubts in the prosecution case which go to the roots of the prosecution case and according to golden principle of benefit of doubt one substantial doubt would be enough for acquittal of the accused. Conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case, must be resolved in favour of the accused.
13. For the foregoing reasons, I reached at the irresistible conclusion that evidence adduced by the prosecution falls short of disclosing the charged offence against the appellant/accused.
14. After hearing the learned counsel for the parties, by a short order dated 18.05.2017, the appeal was allowed, impugned judgment was set aside, appellants’ bail bonds were cancelled and surety was discharged. Above are the reasons for the said short order.
*Aamir/PS* J U D G E