IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Appeal No. S-  109 of 2017.

Mehboob Ali son of Pir Bux Dasti.                      …...…...Appellant.

Versus

The State.                                                             .….…Respondent.

          Mr. Zafar Ali Malgani, Advocate for appellant.

          Mr. Sharafuddin Kanhar, A.P.G.

Date of hearing:             13.04.2018.

Date of Judgment:                   13.04.2018.

JUDGMENT

Amjad Ali Sahito, J.  The appellant, namely Mehboob son of Pir Bux Dasti was tried by the learned II-Additional Sessions Judge, Mehar, in Sessions Case No.138 of 2017, emanating from Crime No.26 of 2017, for offences under Sections 324, 353 PPC, registered at the Police Station B-Section Mehar and on completion of trial he was convicted and sentenced for the offence under Section 324 P.P.C to suffer R.I for five years and fine of Rs.10,000/- and in default in payment of fine to undergo S.I for four months. The appellant was also convicted and  sentenced for offence under Section 353 P.P.C to undergo R.I for one year with fine of Rs.5000/- and in default whereof to undergo S.I for two months more. All the sentences were ordered to run concurrently and appellant was extended benefit of Section 382-B Cr.P.C., vide impugned judgment dated 09.12.2017.

2.       Brief facts of the prosecution case, as narrated in the F.I.R. are that on 05.02.2017 complainant SIP Qadir Bux Behrani alongwith his subordinates, namely, H.C Muhammad Paryal, PC Altaf Ali and PC Majid Ali armed with government arms and ammunition left police station on police mobile No. SP- 371 driven by driver PC Fida Hussain vide roznamcha entry No.13 at 1900 hours for patrolling purpose. During patrolling when they reached near fish-ponds of Niaz Buriro via link road Ghari at 2000 hours, they noticed three armed persons, who presuming police mobile as private vehicle emerged on road from eastern side. Out of them, one was identified as Mehboob Dasti armed with DBBL gun, while remaining two were unidentified; they were armed with repeater guns. The culprits were informed of police and were asked to surrender before the police, but they started direct firing at police party, which was retaliated by the police and such encounter continued for about five minutes and ultimately accused Mehboob Dasti surrendered before police stating that he was received firearm shot injury on his leg. Thereafter, the police party found accused Mehboob Dasti lying on ground and had received firearm injury on his right leg, which had gone through and through and blood was oozing from his injury. One DBBL gun of 21-bore was also lying beside him, which was taken into custody by police and its checking two empty cartridges were lying in its barrel. On inquiry, accused disclosed the gun to be without license and during his personal search four currency notes of Rs.50/- were also secured from his possession. The recovered property was sealed on the spot and such memo was prepared with signatures of police mashirs namely, H.C Muhammad Paryal and PC Majid Ali. Thereafter, the accused alongwith property was brought at Taluka Hospital Mehar, where injured accused was left for medical treatment and complainant went to police station, where he ldoged two separate cases against appellant.

3.       After usual investigation, the police submitted the challan before the Court of law by showing the accused in custody. The trial Court framed the charge against appellant at Ex.02, to which the appellant pleaded not guilty and claimed to be tried.

4.       In order to prove the charge against the appellant, the prosecution examined PW-1 complainant SIP Qadir Bux at Ex.4; he produced roznamcha entry No.13, at Ex.4-A, memo of arrest and recovery at Ex.4-B, arrival entry No.15 t Ex.4-C, police letter at Ex.4-D; copy of F.I.R at Ex.4-E, memo of place of vardat at Ex.4-F, report of ballistic expert at Ex.4-G. PW-2 ASI Muhammad Paryal, who  also acted as mashir, was examined at Ex.6. Thereafter, learned ADPP closed the side of prosecution vide his statement at Ex.7.

5.       The statement of appellant/ accused was recorded under Section 342 Cr.P.C at Ex.8, in which he denied the allegations of the prosecution leveled against him. He claimed his innocence and false implication in this case. He neither examined himself on oath nor led any sort of evidence in his defence.

6.       After hearing the parties, the trial Court passed the impugned judgment dated 09.12.2017, in which the appellant/ accused was convicted, as above, who has filed the instant criminal appeal.

7.       Learned counsel for the appellant has argued that the judgment of the trial Court is much against the law, facts and equity and liable to be set-aside; that the trial Court has failed to appreciate the factual as well as legal aspects of the case while convicting the appellant. He next argued that the evidence adduced by the prosecution at the trial is not properly assessed and evaluated by the trial Court and the evidence which is consist of interested police witnesses is in-sufficient to warrant conviction of the appellant. Lastly he has prayed for setting-aside the impugned judgment and acquittal of the appellant.

8.       Mr. Sharafuddin Kanhar learned Assistant Prosecutor General has supported the impugned judgment passed by the trial Court.

9.       I have considered above contentions of the learned counsel for the appellant and learned Assistant Prosecutor General and have gone through the entire evidence very carefully.

10.     After having heard the learned counsel for the appellants and the learned APG and after precisely going through the record, I am of the view that the case against the appellant is highly doubtful and his conviction is not justifiable.

11.     Record reveals that, as per F.I.R the alleged incident took place at 2000 hours; the complainant SIP Qadir Bux has also affirmed this fact in his deposition that at 2000 hours they reached at the spot and encounter started, which continued for about five minutes, then the police party apprehended one of the culprits in injured condition; recovered weapon and conducted his personal search and recovered some cash amount and thereafter made enquiry from him and then prepared mashirnama. Definitely, all this process must had taken sufficient time, but the mashirnama shows time of its preparation, to be the 2010 hours, means that all this process of apprehending accused, making his body search and recovering weapon and inquiry from him was completed within five minutes . This sole fact proves that the entire case is cooked up at police station and proves the case of prosecution as doubtful. This also proves that the evidence brought on record by prosecution against appellant is not trustworthy and inspiring confidence.

12.     Furthermore, both the prosecution witnesses are police personnel and no any independent person has been cited or examined by prosecution as mashir, though the alleged incident is said to have taken place near fish-ponds and mashirnama of inspection of place of incident shows that place of vardat is situated near fish ponds of Niaz Buriro, there is a link road leading to Mehar town in its northern side, there is land of said Niaz Buriro in its western directions, where there is another link road leading towards village Ghaari. The location of the place of vardat shows that it is an open and busy place, where presence of the independent persons cannot be ruled out.

13.     Moreover, it is the case of prosecution that the accused was apprehended on spot in injured condition and he was brought to hospital for medical examination and treatment. But, no such medical certificate has been brought on record; nor any medical officer in this regard has been examined. This fact of non-examination of medical officer and non-production of the medical certificate proves the defence plea of the appellant/ accused that he was arrested by police from his house and caused bullet injury and booked in case of fake police encounter, to be correct.

14.     Record reveals that, the complainant SIP Qadir Bux has also acted as Investigating Officer of the case and as per mashirnama of inspection of place of vardat; the I.O visited the place of vardat on next date i.e. 06.02.2017 and recovered seven empty cartridges and seventeen empty shells. In the circumstances, it is not understandable and hard to believe that after lapse of one day, the empty cartridges and shells remained available at place of vardat, which is an open and accessible place for everyone.  It is also not acceptable to a prudent mind that, when complainant acted as investigation officer, then why he did not collect the empty cartridges/ shells on the same day. This fact also proves that the entire case is cooked-up at police station.

15.     It further reveals that the mode of recovery of gun from the appellant is also dubious, as according to mashirnama of arrest & recovery and per contents of FIR, the appellant surrendered while sitting on ground and gun was lying by his side, but the complainant SIP Qadir Bux in his deposition has deposed that he secured gun. Moreover, complainant SIP Qadir Bux in his deposition is silent about the fact that the gun was sealed on the spot or not. Since, the mode of recovery of gun is dubious; therefore happening of the instant incident is questionable.

16.     It is the case of prosecution and has come on the record that encounter continued for about five minutes, in which five police personnel and three accused were involved and automatic weapons were used and there is nothing on record to show that both the parties had any protection in shape of tree or wall at the place of incident. In such a situation, it is surprising that only one of the culprits received single injury, which too on calf of his leg and the police vehicle was not caused any damage. This fact again makes happening of the instant incident is questionable and doubtful and it again proves defence plea of appellant to be correct.

17.     In the circumstances, discussed above, I am of the considered view that the prosecution has failed to prove it’s case against the appellant beyond any reasonable doubt and it is well settled principle of law that for creating shadow of doubt, it is not necessary that there should be many circumstances. If a single circumstances creates reasonable doubt in the prudent mind, then its benefit has to be given to the accused not as a matter of grace or concession, but as the matter of right. The reliance is placed on the case of Muhammad Akram v. The State (2009 SCMR 230), wherein the Hon’ble Supreme Court of Pakistan has held that:

“The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as a matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right”.

18.     The learned trial Court has not evaluated the evidence in its true perspective and thus reached to an erroneous conclusion by holding the appellant guilty of the offence. Consequently, the instant appeal is allowed. The conviction and sentence awarded to the appellant is set-aside and he is acquitted of the charge by extending him benefit of doubt.

19.     These are the detailed reasons of my short order dated 13.04.2018.

                                                                JUDGE

Ansari/*