IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

LARKANA

Crl. J Appeal No. D- 06 of 2015.

Present: Mr. Justice Khadim Hussain M. Shaikh.

Mr. Justice Amjad Ali Sahito.

Appellant: Qurban Kandrani, through Mr. Abdul Rehman Bhutto, Advocate.

Respondent: The State, through Khadim Hussain Khoharo, Addl.P.G.

Date of hearing: 17.05.2018.

Date of Judgment: 17.05.2018.

JUDGMENT

Amjad Ali Sahito, J-. Through this criminal appeal, the appellant Qurban son of Ghulam Nabi alias Abdul Nabi Kandrani has impugned the judgment dated 24.01.2015, passed by learned Judge, Anti-Terrorism Court Shikarpur, in Special Case No.31 of 2014, Re; St. v. Qurban, arisen out of Crime No.123 of 2014 registered with Police Station A-Section Thull (District Jacobabad); whereby the appellant was convicted for offence under Section 3/4 Explosive Substance Act, read with Section 6 punishable under Section 7 (i) of Anti-Terrorism Act, 1997 and sentenced to suffer rigorous imprisonment for seven years on each count and all the sentences were directed to run concurrently.

2. The facts of the prosecution case are that, on 22.7.2014 complainant Inspector Amanullah Sadhayo lodged report, stating therein that the accused/ appellant Qurban was under police custody in case bearing Crime No.95/2014, under Sections 324, 327, 149 P.P.C, 3/4 Explosive Act and 6/7 Anti-Terrorism Act, 1997, which was being investigated by J.I.T headed by DSP Pir Bux Leghari. It is further alleged in the F.I.R that, when complainant alongwith SIP Ayaz Ahmed Pathan, SIP Nadir Ali Chang reached in the office of SHO, he got out accused from lock up and produced him before J.I.T for interrogation and during interrogation appellant disclosed that some portion of bomb was concealed by him in jungle near Channa Phatak at Bricklin of Muhammad Qasim Sarki. The accused agreed to led the police party to pointed place, as such at 08.30 a.m. they left police station vide entry No.5 and reached at specified place at 10 or 10.30 a.m. and accused voluntarily led at pointed place, took out Bachka/ gunny bag of white color from layee jungle from near Batha and disclosed that it was bomb, the police opened the bachka and found that it was improvised bomb, which was sealed under memo with signatures of SIP Ayaz Ahmed and SIP Nadir Ali. Then the accused alongwith case property was brought back to police station, where complainant lodged report to the above effect.

3. The Special Team of Bomb Disposal Squad was called, who saw and defused the same and issued such certificate and on completion of usual investigation, the police submitted the challan against the appellant.

4. The trial Court took cognizance of the offence and framed charge against appellant at Ex.04, to which the appellant pleaded not guilty and claimed to be tried.

5. In order to prove the charge against the appellant, the prosecution examined complainant Inspector Amanullah Sadhayo at Ex.5; he produced memo of formal arrest and recovery of explosive material, copy of entry, copy of F.I.R, copy of technical report of Bomb Disposal Squad Larkana and memo of place of occurrence at Ex.5-A to Ex.5-E. PW SIP Ayaz Ahmed Pathan was examined at Ex.6 and PW SIP Nadir Ali at Ex.7.Thereafter, learned Prosecutor closed the side of prosecution vide his statement at Ex.8.

6. The statement of appellant/ accused was recorded under Section 342 Cr.P.C at Ex.9, in which he denied the allegations of the prosecution leveled against him. He claimed his innocence and false implication in this case. He however, examined himself on oath but did not lead any sort of evidence in his defence.

7. After hearing the parties, the trial Court passed the impugned judgment dated 24.01.2015, in which the appellant/ accused was convicted, as above, who has filed the instant criminal appeal.

8. 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 against the appellant. Lastly, he has prayed for setting-aside the impugned judgment and acquittal of the appellant.

9. Mr. Khadim Hussain Khoharo learned Addl. Prosecutor General has supported the impugned judgment passed by the trial Court by submitting that the learned trial Court has rightly convicted and appellant and there is no irregularity and illegality in the impugned judgment and that the contradictions, if any, in the evidence of witnesses are minor in nature.

10. We have considered contentions of the learned counsel for the appellant and learned Addl. Prosecutor General and have gone through the entire evidence very carefully.

11. All the three witnesses examined at trial are police personnel and no any independent person has been cited or examined by prosecution, as P.Ws there was no private persons available on the spot, but in their cross-examination the complainant and witnesses have admitted that there were some villages in between place of vardat and police and place of vardat was at distance of 10/ 15 paces from link road and it was near to bricklin. Moreover, mashirnama of place of occurrence shows existence of village Muhammad Panah in north of place of vardat, and a road and bricklin in its west and in its south there is also road leading to Thull town. And, as per evidence of witnesses, the appellants was arrested in the day time and in day time usually the people remained available in routine business of life in fields and roads, as such it is hard to believe that at that time, there was no private witness available at the spot. We are of the view that either a private witness ought to be associated, or some convincing reasons should be given for non-associating a private witness, but no cogent reason has been given.

12. Perusal of evidence of witnesses reflects that it is not only in contradiction to each other, but it is also self-contradictory. As per statement of complainant Inspector Amanullah they interrogated accused for 30 minutes, but as per statement of PW SIP Ayaz Ahmed they taken 45 minutes of one hour during interrogation of accused. The complainant has himself contradicted his own statement; in his cross-examination he deposed that we might have taken half an hour at place of vardat in preparing mashirnama and at same moment he has deposed that we might had taken 15/20 minutes in preparing mashirnama, whereas PW Ayaz Ahmed has again contradicted the complainant on this point by deposing in his cross-examination that we may have taken one hour or one hour and fifteen minutes at place of recovery in preparation of mashirnama. Per evidence of complainant, they reached place of vardat after F.I.R at 01.45 hours, but PW Ayaz Ahmed has deposed that they inspected place of vardat at 02.00 p.m. and the memo of inspection of place of incident shows its preparation at 1400 hours (2.00 p.m.). The complainant in his cross-examination has deposed that we might have taken 10 minutes in preparing mashirnama of place of vardat after F.I.R, but PW SIP Ayaz Ahmed has contradicted the complainant by deposing that we had taken about one or “sawa” hour at place of incident.

13. The above evidence of the prosecution witnesses does not appear to be trustworthy and inspiring confidence because it is not only full of contradictions but as well as self-contradictory on very material and crucial points and proves the case of prosecution, as doubtful. Moreover, the Incharge Bomb Disposal Squad who examined recovered material and defused it, has not been examined by the prosecution.

14. 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 Mansha v. The State (2018 SCMR 772), wherein the Hon’ble Supreme Court of Pakistan has held that:

“Needless 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 the accused, then the 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 guilty 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)”.

15. 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, in view of above, the instant appeal was allowed. The conviction and sentence awarded to the appellant Qurban son of Ghulam Nabi Kandrani was set-aside and he was acquitted of the charge by extending him benefit of doubt and was directed to be released forthwith, if his custody is not required in any other case, vide our short order dated 17.05.2018 and these are the reasons for the same.

JUDGE