IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Jail Appeal No. S- 67 of 2017.
Appellant: Shaman Tunio, through Mr. Ali Raza Pathan,
Advocate.
Respondent: The State, through Mr. Sharafuddin Kanhar, A.P.G.
Date of hearing: 02.04.2018.
Date of the decision: 02.04.2018.
J U D G M E N T
Amjad Ali Sahito, J.– Appellant Shaman son of Allah Bukhsh Tunio was tried by the learned Additional Sessions Judge-III, Larkana, in Sessions Case No.460/2016, arising out of Crime No.78/2016, for offence under Section 24 of the Sindh Arms Act, 2013, registered at Taluka Police Station, Larkana. By judgment dated 24.08.2017, the appellant was convicted for offence punishable under Section 24 of the Sindh Arms Act, 2013, to suffer rigorous imprisonment for three years and to pay fine of Rs.15000/- and in default thereof to undergo S.I for further period of five months. However, the benefit of Section 382-BCr.P.C. was also extended to the appellant.
The brief facts of the prosecution case in nutshell are that on 22.7.2016 complainant/ASI Abdul Sattar alongwith PC Abdul Ghani, PC Gulab Khan, PC Javed Ali and PC Ghulam Bashir and driver Raza Muhammad left Police station for patrolling vide entry No.23, at 1730 hours. During patrolling when they reached at Kamber bypass, he received spy information regarding presence of four accused, required in Crime No.70/2016, 71/2016 and 72/2016 of Taluka P.S Larkana. On such information the police party rushed towards the pointed place, where they arrived and noticed accused Shaman son of Allah Bux armed with gun, Gul Hassan son f Khan Muhammad Khuhawar armed with repeater, Ghulam Nabi son of Khadim Shaikh armed with rifle and one unknown armed with rifle. The accused persons on seeing police party, directly made fire shots upon them, which the police retaliated in their defence and such encounter continued for about ten minutes. Thereafter, the police tactfully while encircling the accused apprehended two of them while two of them succeeded in escaping away. One repeater gun was recovered from accused Ali Hassan, while a SBBL gun was recovered from appellant Shaman Tunio, who was in injured condition. The complainant prepared such mashirnama of arrest and recovery in presence of mashirs, namely, PC Abdul Ghani and PC Gulab Khan. The injured accused was sent to hospital, while accused Gul Hassan was brought to Police station, where complainant lodged report to the above effect.
After registration of FIR, the investigation was carried out by the ASI Ghulam Rasool after completing all the formalities, submitted the final report under Section 173 Cr.P.C. against the appellant in the Court of law.
The charge at Ex.2 was framed under Section 24 of the Sindh Arms Act, 2013 on 27.09.2016 against the appellant by the learned trial Court, to which appellant pleaded not guilty and claimed to be tried.
At the trial, in order to establish accusation against the appellant, prosecution had examined the following witnesses:-
(i) PW-1/ complainant/ ASI Abdul Sattar was examined at Ex.4, who produced mashirnama of arrest and recovery at Ex.4-A and Ex.4-B.
(ii) PW-2 PC- Abdul Ghani was examined at Ex.5.
(iii) PW-3 ASI Ghulam Rasool/ Investigation Officer was examined at Ex.6; he produced mashirnama of place of vardat at Ex.6-A and mashirnama of imaginary arrest of accused at Ex.6-B.
These witnesses were cross examined by the appellant. Thereafter, leaned DDPP closed the prosecution side vide Statement at Ex.7.
Statement of appellant was recorded under Section 342 Cr.P.C. at Ex.8, in which he has denied the allegations as leveled by the prosecution and stated that he is innocent. He however examined himself at Ex.9; so also led evidence in defence by producing DWs Deedar Hussain and Abdul Karim, whose evidence was recorded t Ex.10 and Ex.11.
Trial Court after hearing the parties and on the assessment of evidence, convicted and sentenced the appellant as stated above. Hence, appeal has been preferred against the impugned judgment.
Mr. Ali Raza Pathan, learned counsel for the appellant contended that it was the case of spy information inspite of that ASI Abdul Sattar failed to call any independent and respectable person from the place of arrest and recovery though the place of incident is thickly populated area, hence, there is a violation of Section 103 Cr.P.C; that all the prosecution witnesses are the police officials and their evidence required independent corroboration; the Appellant previously is not involved in any criminal case. Lastly, he has prayed that the sentence of the appellant may be reduced into the period he has already undergone contending that the appellant and his family members are very poor and the appellant is only the bread earner of his family, and due to confinement of the appellant; his family members are passing miserable life; and that the appellant undertakes that he will prove himself a liable law abiding citizen and will not indulge himself in any unlawful act.
Conversely, Mr. Sharafuddin Kanhar, A.P.G while supporting the impugned judgment, has argued that prosecution has proved its case against the appellant; that police officials have no enmity to foist a weapon upon the appellant. However, he extended his no objection to reduction in sentence.
I have heard the learned counsel for the appellant and the learned A.P.G. and gone through the evidence with their assistance.
As regard the contention of learned counsel for the appellant for non-association of private witnesses is concerned, suffice to say that the evidence of officials is competent and their evidence cannot be discarded, only for the reasons that they are police officials. They have furnished straight forward and confidence inspiring evidence and there is nothing on record to show that they deposed against the appellant maliciously or out of any animus. So far as the independent witnesses is concerned, it has been time and again observed by the Honourable Superior Courts that people do not cooperate and give consent to be cited as a witnesses of recovery. In such situation, the Police witnesses are good witness until and unless malafide is established against them. In the instant case, there has been brought no proof of enmity with the complainant as well prosecution witnesses thus in absence thereof the competence of prosecution witnesses regardless of their being officials was rightly believed. Even otherwise, mere status of one as ‘official’ would not alone prejudice the competence of such a witness unless and until he is proved to be interested who has motive to falsely implicate an accused or has previous enmity with the person involved.
From the perusal of record it appears that the appellant was caught red-handed in injured condition; unlicensed weapon was recovered from his possession. This is sufficient to conclude that prosecution successfully discharged its burden. Such burden would require the accused to firstly cause dent in prosecution case and secondly to establish least justify possibility of false implication or foisting of weapon. In the instant matter, the recovery witnesses remain consistent on each and every material aspects such as manner of departure till arrest and recovery of weapon. All the witnesses were cross-examined by the appellant but no material contradictions have been extracted from therein. Furthermore, no enmity, ill-will or grudge has been proved against the prosecution witnesses, for falsely implication of the appellant in this case.
As regards the last contention of learned counsel for reduction of sentence of appellant is concerned, in the case in hand the appellant, who is in jail since date of his arrest i.e. 22.07.2016, and the family of the appellant, per his counsel, is passing miserable life due to confinement of the appellant in jail. Further, as per jail report that the conduct of the appellant during confinement is “satisfactory”. The appellant is first offender and has no previous criminal record/ history in his credit. Besides, the appellant claims himself to be only male member of the family and has also served more than two years of imprisonment, therefore, it is appropriate that appellant may be given an opportunity to improve himself as a law abiding citizen so also being head of his family provide them basic necessity in a good manner.
Considering the above facts and circumstances of the case, I am of the view that prosecution has succeeded to bring the guilt of accused at home and learned counsel for the appellant has failed to point out any material illegality or serious infirmity committed by the trial Court while passing the impugned judgment, and thus the appeal is liable to be dismissed on merits. However, in view of discussion made hereinabove on plea of reduction of sentence, I find it a fit case for departure from normal practice of determining quantum of sentence. The Jail Roll dated 14.02.2018, that the appellant has served the sentence for more than two years including remissions, therefore, in my humble view it would serve both the purposes of deterrence and reformation, if the sentence, awarded to appellant, is reduced to one already undergone by him. Accordingly, the sentence of the appellant is altered and reduced to the period which he has already undergone the period he was to undergo in lieu of fine.
These are the detailed reasons for the short order announced by me vide order dated 02.04.2018, which reads as under:
“For the reasons to follow, instant appeal is dismissed on merits and the conviction awarded to the appellant Shaman son of Allah Bukhsh Tunio vide judgment dated 24.8.2017 passed by learned 3rd Additional Sessions Judge, Larkana in Sessions Case No.460 of 2016 (State V. Shaman son of Allah Bukhsh Tunio) of Crime No.78 of 2016 registered at Police Station, Taluka under section 24 of Sindh Arms Act, 2013 is maintained however, the sentence awarded to the appellant is altered and reduced to the period he has already undergone, which includes the period he was to undergo in lieu of the fine. The appellant is directed to be released forthwith in the instant case, if his custody is not required in any other case.”
JUDGE