IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Acquittal Appeal No.D-10 of 2018
Present:
Mr. Justice Khadim Hussain Tunio,
Mr. Justice Irshad Ali Shah,
Appellant : The State through Prosecutor General Sindh,
Through Mr.Khadim Hussain Khooharo, A.P.G
Respondents : None for private respondents.
Date of hearing : 23.10.2018
Date of decision : 23.10.2018
JUDGMENT
IRSHAD ALI SHAH, J-, The appellant/State by way of instant criminal acquittal appeal has impugned judgment dated 14.02.2018, passed by learned Special Judge, Anti-Terrorism Court, Kashmore @ Kandhkot, whereby the private respondents have been acquitted of the offence, for which they were charged.
2. The facts in brief necessary for disposal of instant criminal acquittal appeal are that on 21.01.2017, complainant SIP Aijaz Ahmed Jagirani when was available at P.S Gablo Katcho, came to know through spy information that notorious dacoits of area namely Ali and Takkar alias Ali Muhammad with their associates are coming towards village Sukhwan Jafferi with intention to commit some offence. On such information, the said complainant with his staff proceeded to the pointed place, he also called, in his aid, the police party of P.S Durrani Mahar. When they reached at curve of village Sukhwan Jafferi, there they found available 24 persons duly armed with sophisticated weapons, out of them, 21 persons were identified by them to be 1). Ali, 2). Takkar alias Ali Muhammad, 3). Bashir alias D.C, 4). Kakar, 5). Dado alias Illahi Bux, 6). Yaseen, 7). Meer Ahmed, 8). Saboo, 9). Mehar, 10). Hussain, 11). Nadar, 12). Sulleman, 13). Shahban, 14). Jaggan, 15). Nooruddin, 16). Naju alias Najamuddin, 17). Menhoon, 18). Hafeez, 19). Ahmedan, 20). Shah Nawaz and 21). Sabir. They were asked by the said complainant to surrender, on that accused Takkar alias Ali Muhammad fired and killed PC Subah Sadiq. Accused Ali fired and injured PC Bashir Ahmed. Both the said police constables after sustaining fire shot injuries fell down. The said accused then fired at said police party with intention to commit their murder. They were also fired at by the said police party and then they made their escape good by taking advantage of “Laee bushes” and jungle. In the meanwhile, there came the police party of P.S Durrani Mahar consisting of HC Allah Jurio and others. They were also fired at by the said accused with intention to commit their murder. Such firing continued for about one hour. Some of the accused while sitting in the police mobile drove it away towards protective bund while making fires. The dead body of PC Subah Sadiq and injured PC Bashir Ahmed then were referred to Civil Hospital, Kandhkot. HC Sahib Khan, HC Allah Jurio, PC Mehboob Ali and PC Ahmed Ali intimated the said complainant that the accused have also taken away their official weapons. In the meanwhile, the police parties of different police stations of district Kashmore and DSP Miyani Muhammad Khan Khoso came at the place of incident; they chased the accused but failed to apprehend any of the accused. Consequently, the FIR of the said incident bearing Crime No.02/2017, offence punishable u/s 302, 324, 353, 395, 427, 148, 149 PPC and 6/7 of Anti Terrorism Act, 1997 was lodged with P.S Gablo Katcho.
3. On 23.01.2017, police party of P.S Durrani Mahar consisting of SIP Rafique Ahmed Khero when was available at P.S Durrani Mahar, came to know through spy information that absconding accused of above said crime with robbed police mobile are available at their houses. On such information, he with his police party proceeded to the pointed place, when reached adjacent to house of accused Shah Nawaz Sabzoi, there under the light of police mobile, he found available the robbed police mobile and there they found coming towards him and his police party nine culprits, out of them seven were identified by them to be 1).Muhammad Hassan alias Gaadhi, 2). Takkar alias Ali Muhammad, 3).Kakar, 4). Bashir alias D.C, 5). Ahmedan, 6). Abdul Rehman alias Shah Nawaz and 7). Karamullah, duly armed with Kalashnikovs. They were asked to surrender, on that they fired at above said police party with intention to commit their murder. The said accused were also fired at by the said police party. In the meanwhile, one person by raising cries by saying that he has sustained fire shot injury fell down. Such firing continued for about 30 minutes. Then all the accused made their escape good by taking advantage of jungle leaving behind their injured companion. He was apprehended by the police alongwith Kalashnikov. He on enquiry disclosed his name to be Ahmedan. He was found sustaining fire shot injury on his right leg and for Kalashnikov, he disclosed that it is the same which was robbed by him during course of incident relating to FIR Crime No.02/2017 of P.S Gablo Katcho. A memo of arrest of accused Ahmedan and recovery of robbed K.K and police mobile was prepared at the spot. Accused Ahmedan then was taken to P.S Durrani Mahar, there he was booked in the above said offence by way of filing FIR Crime No.02/2017, offence punishable u/s 324, 353, 148, 149 PPC and 6/7 Anti Terrorism Act, 1997, of P.S Durrani Mahar. Besides above said case, accused Ahmedan was also booked in FIR Crime No.03/2017, offence punishable u/s. 23 (i) of Sindh Arm Act, with P.S Durrani Mahar, for his being in possession of unlicensed Kalashnikov. During course of investigation, accused Shah Nawaz was also apprehended and both of the said accused after usual investigation were challaned by the police before learned trial Court for their trial for the above said offences.
4. At trial, the private respondents were charged for above said offence, they did not plead guilty to the charge and the prosecution to prove it examined PW-01 Mashir/HC Allah Jurio, PW-02 PC Nadir Ali, PW-03 Mashir/PC Shoukat Ali, PW-04 SIO/Inspector Abdul Ghaffar Lashari, PW-05 medical officer Dr.Abdul Subhan, PW-06 SIP Aijaz Ahmed Jagirani, PW-07 ASI Ghulam Rasool, PW-08 HC Sahab Khan, PW-09 PC Soomar Ali, PW-10 Mehboob Ali, PW-11 Tapedar Qadeer Ahmed, PW-12 SIP/SHO Rafique Ahmed Khero, PW-13 PC/Injured Bashir Ahmed, PW-14 SIP Ali Baig Bijarani, PW-15 Inspector Abdul Ghaffar and then closed the side. Needless to state that all the relevant documents were produced by the prosecution before learned trial Court through the above said witnesses.
5. Both of the private respondents during course of their examination under section 342 Cr.PC denied the prosecution’s allegation by pleading their innocence. They did not examine anyone in their defense or themselves on oath in disproof of the prosecution allegation.
6. On evaluation of evidence, the learned trial Court acquitted both of the private respondents of the charge, for the above said offences by way of judgment dated 14.02.2018, which the appellant/State has impugned before this Court by way of instant criminal acquittal appeal.
7. It is contended by the learned A.P.G for appellant/State that the prosecution has been able to prove its case against the private respondents beyond shadow of doubt by producing cogent evidence, it has been disbelieved by the learned trial Court without any lawful justification. By contending so, he sought for admission of the instant criminal acquittal appeal to its regular hearing for appropriate action against the private respondents.
8. We have considered the above arguments and perused the record.
9. Both the police parties were having advance information of the incident, yet no independent witness was associated by any of them to witness the possible arrest and recovery, for no obvious reason, which appears to be significant. If for the sake of arguments, it is believed that the incident took place in a manner, as is alleged by the prosecution even then the role of committing murder of P.C Subah Sadiq and causing fire shot injury to PC Bashir Ahmed is attributed to accused Takkar alias Ali Muhammad and Ali, both of them are still absconding. There is general allegation of robbery of police mobile and official weapons. Complainant SIP Aijaz Ahmed during course of his cross examination was fair enough to admit that the accused were not known to him prior to the incident. If it was so, then the disclosure of the names of the accused by him in his FIR with parentage and caste of the accused is appearing to be somewhat significant. During course of his cross examination, it was also admitted by him that accused Shah Nawaz is aged and disable and he cannot move properly. If it is so, then the participation of aged and disable person who is not in position to move, in commission of the incident is appearing to be doubtful one. In these circumstances, the learned trial Court was right to record acquittal of the private respondents by extending them benefit of doubt with the following observation;
“The evidence of above discussed police personnels including the complainant SHO reveal that there are major contradictions in their evidence and no any specific role to the present accused Shah Nawaz and Ahmedan have been attributed in the evidence. All the police personnels have given the evidence of their own choice which do not support the contents of FIR. When the police party were acquainted with automatic weapons and encounter took place at very short range but the accused party did not receive any loss of life or even bullet injury. No doubt, one police constable Subah Sadiq has lost his life whereas other PC Bashir Ahmed received injuries but the evidence available on record is insufficient to believe the prosecution story. As per prosecution case, the accused/culprits snatched the weapons from police party and proceeded on the police mobile from the scene of offence on which police party has reached there but what was the reasons which compelled the police personnel who were available at the place of vardat did not given resistance, even they did not fire on the tire of police mobile to make it unable to proceed. In these circumstances, the story of prosecution cannot be believed without some independent evidence. As per record the case is willfully kept confined to evidence of official witnesses on each and every event or aspect of the investigation, though police stations where SHOs received spy information are thickly and populated area where private mashirs were available but no picked up for such purpose. The subsequent IOs did not try to collect evidence to come to more rightful conclusion and kept limited to what was already made available.
Moreover, the said empties were not sent to the expert on 20.01.2017, 23.01.2017 or 24.01.2017 and that they were sent together with secured weapons on 07.02.2017, while the dates of securing the said weapons from the concerned accused persons on 23.01.2017 and 24.01.2017, hence the possibility of having maneuvered the same could hardly be ruled out of consideration in the circumstances of the case (vide NLR 1998 Criminal Abbot-193, NLR Criminal Multan-217)”.
10. In case of Faheem Ahmed Farooq vs.The State (2008 SCMR-1572), it is held that;
“single infirmity creating reasonable doubt regarding truth of the charge makes the whole case doubtful.
11. It is settled by now that the acquittal carry with it double presumption of innocence and interference with acquittal is narrow and limited, which could only be interfered with when the judgment of the acquittal is found to have been passed in arbitrary and cursory manner.
12. In case of State and others vs. Abdul Khaliq and others (PLD 2011 SC-554), it is held by the Hon’ble Court that;
“The scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. Interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Judgment of acquittal should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous. The Court of appeal should not interfere simply for the reason that on the reappraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities”.
13. Nothing has been brought on record which may suggest that the impugned judgment has been passed by learned trial Court in arbitrary or cursory manner, which may justify making interference with it by this Court.
14. Above are the reasons of our short order dated 23.10.2018, whereby the instant criminal acquittal appeal was dismissed.
JUDGE
JUDGE
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