IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Jail Appeal No. D- 42 of 2016.

Present:

Mr. Justice Khadim Hussain M. Shaikh.

Mr. Justice Amjad Ali Sahito.

Appellant: Bahadur Jalbani, through Mr. Safdar Ali Ghouri, Advocate.

State: Through Mr. Abdul Waheed Bijarani, A.P.G.

Date of hearing: 29.03.2018.

Date of decision: 29.03.2018.

J U D G M E N T

AMJAD ALI SAHITO, J-. Through instant appeal, the appellant Bahadur Ali son of Roshan Ali Jalbani has impugned the judgment dated 15.06.2016, passed by learned Special Judge, Anti-Terrorism Court, Larkana, in Special Case No.21 of 2010, re; St. v. Bahadur Ali, arisen out of Crime No.80 of 2010 of Police Station Hyderi; whereby the appellant was convicted and sentenced to suffer rigorous imprisonment for life with forfeiture of his moveable and immovable property for offences under Section 365-A, 148, 140 P.P.C read with Section 7 (e) Anti-Terrorism Act, 1997. However, he was extended benefit of Section 382-B Cr.P.C.

2. The facts of the prosecution case are that complainant Sadaruddin Junejo lodged report with P.S Hyderi, Larkana on 11.6.2010, stating therein that he has a minor daughter namely Samreen aged about 4/5 years. That, on the fateful day i.e. 11.6.2010, complainant alongwith P.Ws, cousin Abdul Rasheed Junejo and relative Muhammad Ali Junejo were sitting in the street situated in Murtaza Colony, Larkana, whereas adjacent to them, baby Samreen was standing in front of door of her house, as such at about 4.00 p.m. five persons arrived there. Out of them, one was identified as Bahadur Jalbani while four persons were unknown; all of them took out pistols from their folds of Shalwar and aimed upon complainant party, as such due to fear of life the complainant party remained silent, thereafter accused Bahadur forcibly took baby Samreen and threatened complainant party to give Rs.10,00,000/- as ransom amount and in case anyone complained or chased them, then dead body of baby will be dispatched. The complainant party due to fear of life and being empty handed remained silent and accused persons forcibly kidnapped away minor baby Samreen for ransom. The complainant at-once through phone informed to police station Hyderi, Larkana, thereafter, he went there and lodged F.I.R to the above effect.

3. After lodging of the F.I.R, the patrolling police officer of “15-Base” namely, ASI Muhammad Tagial arrested accused Bahadur with pistol after an encounter from graveyard of Meeran Shah, Luhur Colony, Larkana and baby Samreen was also recovered, while remaining four culprits succeeded in escaping away and on completion of usual investigation, the investigating agency filed charge sheet against the appellant.

4. Initially on conclusion of the trial, vide judgment dated 27.09.2010, the appellant Bahadur was convicted and sentenced to suffer R.I. for life with fine of Rs.100,000/-, and that judgment was challenged before this Court and this Court maintained the conviction of the appellant, vide judgment dated 29.10.2013, and ultimately the appellant filed Criminal Jail Petition No.470/2013 and Criminal Appeal No.4-K of 2016, before Hon’ble Supreme Court, vide Order dated 21.3.2016, set aside the judgment of trial Court as well of this Court and remanded the matter to the trial Court for denovo trial.

5. Thereafter, the trial Court started denovo trial and prosecution examined complainant Sadaruddin as PW-1 at Ex.18, who produced photocopies of F.I.R No.227/2009 of P.S Market at Ex.18-A, lodged by one Muhammad Ayoub Jatoi for kidnapping of his daughter namely baby Sanam by present appellant Bahadur Jalbani; he also produced copy of F.I.R No.152/2006 of P.S Market at Ex.8-B lodged by one Abdul Jabbar Jatoi for kidnapping of his daughter baby Khursheed against present appellant; the complainant also produced F.I.R No.182/2009 of P.S Waleed lodged by one Muhammad Ali Kalhoro at Ex.18-C and original copy of private “faisla” held by him before Jamila Islamia Ishaiat-ul-Quran Wal-Hadith at Ex.18-D. Prosecution examined PW-2 Abdul Rasheed Junejo at Ex.19. PW-3 ASI Muhammad Tagial at Ex.20. PW-4 H.C Bashir Ahmed Mirani was examined at Ex.21. PW-5 /1^st mashir of place of vardat Mumtaz Ali was examined at Ex.22. PW-6 Inspector/ SIO Abdul Ghafoor Chandio was examined at Ex.23, who produced attested photocopy of mashirnama of place of vardat of crime No.81/2010 of P.S Hyderi Larkana, letter of S.P Investigation, Larkana and photo/ picture of baby Samreen at Ex.23-A to Ex.23-C respectively. Thereafter, the prosecution closed its side vide Ex.24.

6. Then the statement of appellant was recorded under Section 342 Cr.PC at Ex.25, in which he denied the prosecution allegations against him and also denied to examine himself on oath or to lead evidence in his defence. He however produced certified true copy of judgment dated 27.5.2010 at Ex.25-A passed in Crime No.227/2009 and true cop of judgment dated 04.2.2010 passed in Crime No.182/2009.

7. We have heard learned counsel for the appellant, as well as learned Advocate for complainant and learned A.P.G. and also perused the entire record with their assistance.

8. Learned counsel for the appellant criticized the impugned judgment and argued that the prosecution witnesses are closely related inter-se, and no independent witness has been examined by the prosecution at trial. Learned counsel contended that the abductee was not examined nor she was tested by learned trial Court whether she will be able to give evidence or not; that in 13-D Arms Ordinance, the appellant was acquitted but no appeal was preferred by the State; that the prosecution has failed to prove the case against the appellant; he lastly prayed that the appellant may be allowed and appellant be acquitted in the circumstances.

9. On the contrary the learned A.P.G appearing for the State supported the impugned judgment by submitting that the prosecution case has rightly been believed by the learned trial Court and the appellant has rightly been awarded conviction.

10. We have heard the learned counsel for the parties and perused the record and have read the evidence of the complainant as well as other witnesses. Perusal of record shows that the FIR was registered at 04.30 p.m by the complainant but in his examination in chief, the complainant admitted that he alongwith his witnesses, relatives and neighbourers went to police station where the SHO handed over him his daughter baby Samreen and accused/appellant Bahadur was shown by the police in the lockup but the mashirnama of arrest and recovery of abductee Exh.08/A shows that the encounter took place between the police and the accused party whereas the police arrested the present appellant carrying his baby on his shoulders and such mashirnama of arrest of accused and recovery of baby Samreen was prepared at 1630 hours, and if the baby was handed over by the SHO after registration of FIR at police station at 1430 hours, then naturally the time might have been consumed in observing all formalities for preparation of mashirnama of arrest and recovery of baby Samreen by ASI Muhammad Tagial and his party, for which no explanation has been furnished by the prosecution. The encounter took place between accused and police party but not a single person had received even single scratch to believe that any encounter had taken place. Further, the place of alleged encounter is situated at thickly populated area but not a single independent person of the locality has been cited to attest the arrest and recovery proceedings, which was in clearly violation of mandatory provision of section 103 Cr.PC. Furthermore, there is no recovery of any empty from the place of incident to justify the claim of encounter between the accused and police party. The encounter is said to have continued between the accused and police party during course whereof the present appellant was carrying baby on his shoulder, which does not attract the prudent mind and rendered the claim of encounter to be doubtful one. The baby Samreen being star witness of the incident was neither examined by the prosecution nor she was tested by learned trial Court whether she was in a position to give statement before it, which adversely reflected upon the prosecution case. Moreover, the present appellant has also been acquitted from the case under Section 13-D Arms Ordinance.

11. In these circumstances, discussed above, we are 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 Masha v. The State (2018 SCMR-772), wherein the Hon’ble Supreme Court of Pakistan has held that:

4.--- Needles to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of accused, then accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right. It is based on the maxim,”it is better that ten guilt persons be acquitted rather than one innocent person be convicted”. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State(1995 SCMR-1345), Ghulam Qadir and 2 others v. The State(2008 SCMR-1221), Muhammad Akram v. The State(2009 SCMR-230) and Muhammad Zaman v. The State(2014 SCMR-749).

12. 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.

13. These are the detailed reasons of short order dated 29.03.2018, announced by us.

J U D G E