JUDGMENT

Muhammad Saleem Jessar, J.- By this single judgment, I propose to dispose of captioned three criminal appeals as all these, the appeals arise out of the one and same incident, therefore, common question of law as well as facts are involved.

Through Cr. Appeals No.S-47 of 2021, appellants Mohammad Sadique, Manzoor Ahmed and Riaz and through Cr. Appeal No.S-50 of 2021, appellant Mohammad Hanif have challenged the Judgment dated 21.06.2021 handed down by III-Additional Sessions Judge, Mirpur Mathelo passed in Sessions Case No.283 of 2020, (re-State Vs. Muhammad Hanif and others), arising out of FIR No.39/2020 under Sections 399/402/324/353/148/149 PPC registered at P.S. Belo Mirpur, whereby he convicted all the accused for an offence punishable u/s 399 PPC and sentenced each of them to undergo R.I. for 04 years and to pay fine of Rs.3000/- each and in default to pay the fine, accused were ordered to suffer S.I for one week each more. He also convicted all the above named four accused persons for an offence punishable under Section 402 PPC and sentenced each of them to undergo R.I. for three years and to pay fine of Rs.2000/- each, and in default to pay the fine to suffer S.I. for 05 days more. He also convicted all accused persons for an offence punishable u/s 324 PPC and sentenced each of them to undergo R.I. for five (5) years and to pay fine amount of Rs.4000/- each, and in default to pay the fine to suffer S.I. for one week more. He also convicted all the four accused for an offence punishable u/s 353 PPC and sentenced each of them to undergo R.I. for one year. He . . hEhE hE H hEh```hEfurther convicted all four accused persons for an offence punishable u/s 148 PPC and sentenced each of them to undergo R.I. for one year. He further convicted all the accused for an offence punishable u/s 149 PPC and sentenced each of them to undergo for R.I. for one year. However, benefit of Section 382-B Cr.P.C. was extended to all the accused persons. All the sentences of imprisonment awarded to the accused persons were ordered to run concurrently.

Through Cr. Appeal No.S-51 of 2021, appellant Mohammad Hanif has challenged the Judgment dated 21.06.2021 handed down by III-Additional Sessions Judge, Mirpur Mathelo passed in Sessions Case No. 283 of 2020, (re- State Vs. Muhammad Hanif), arising out of FIR No.40/2020 under Section 24 of Sindh Arms Act, 2013,registered at P.S. Belo Mirpur, whereby he convicted accused Mohammad Haneef for said offence and sentenced him to undergo R.I. for 05(five) years and to pay fine of Rs.5000/- (Rupees Five thousand only) and in default, to pay the fine, he was ordered to suffer S.I for one week more. In this case too, the accused was extended benefit of Section 382-B Cr.P.C.

Concisely, the facts of prosecution case, are that on 19.8.2020 complainant ASI Ali Gul Siyal, lodged aforesaid FIRs at P.S Belo Mirpur, on behalf of State, stating therein that on 18.8.2020, he took his subordinate staff namely, HC Muhammad Shahban Korai, PC Sabir Hussain, PC Sajjad Ahmed, along-with DPC Hussain Ahmed and left the P.S in police mobile No.SPC-344, as per DD entry No.22 at 2200 hours, for patrolling in the area. During course of patrolling, when they reached at Taree plot, situated at Bago Draho link road, on the light of police mobile, they saw that five culprits namely Muhammad Hanif Mirani, Muhammad Sadique Ghoto both armed with pistols, Muhammad Nawaz Siyal, Manzoor Ahmed Ghoto and Riaz Ghoto, all armed with Kalashnikovs were standing there. They indicated the police mobile to stop for robbing purpose. Complainant party stopped the police mobile, alighted from it. The culprits on seeing them in police mobile and police uniform made straight firing upon them with intention to commit their Qat-e-Amd. Police party also fired upon the culprits in their defence. Firing lasted for about ten minutes. Thereafter, they heard cries of one culprit and he was calling his companions that he was injured in the firing. Police party encircled the culprits and apprehended one of them who was injured, while rest four culprits fled away from the spot taking advantage of darkness. Due to non- availability of private mashirs, HC Muhammad Shahban Korai and PC Sabir Hussain, were associated as mashirs and in their presence, complainant enquired from the apprehended culprit about his name and whereabouts, who disclosed his name to be Muhammad Haneef son of Momin, by caste Mirani. Complainant secured one pistol of 30 bore in working condition, Pakistani made, with magazine lying near apprehended accused. Accused Muhammad Hanif failed to produce any valid licence for the pistol. Thereafter, complainant ASI Ali Gul Siyal, prepared memo of arrest, search and recovery in presence of mashirs namely, HC Muhammad Shahban and PC Sabir Hussain and then brought the accused along-with secured property at P.S Belo Mirpur, where he got registered two FIRs i.e. FIR No.39/2020, under Sections 399,402,324,353,148,149 PPC and FIR No.40/2020, u/s 24 SAA, 2013, on behalf of the State.

After completing usual investigation, the SHO P.S Belo Mirpur, submitted challan of the case against the accused before learned IstJ.M. Mirpur Mathelo, wherein accused Muhammad Hanif Mirani and Muhammad Sadique Ghoto, were shown in custody, while accused Muhammad Nawaz Siyal, Manzoor Ahmed Ghoto and Riaz Ghoto, were shown as absconders. On 28.10.2020, accused Riaz Ahmed Ghoto and Manzoor Ahmed Ghoto, appeared and produced a copy of letter of interim pre-arrest bail, granted to them by the trial Court. On 10.11.2020, the proceedings against accused namely, Muhammad Nawaz Siyal, were abated as he had expired on 23.9.2020, during the encounter with police of P.S. Wasti Jiwan Shah. Thereafter, learned 1^stJ.M. Mirpur Mathelo, sent-up the challan of this case alongwith R&Ps to the Sessions Court Ghotki, where from on 25.11.2020, the case papers were received by the trial Court by way of transfer, for disposal according to law.

Charge against four accused namely, Muhammad Hanif Mirani, Muhammad Sadique Ghoto, Manzoor Ahmed Ghoto and Riaz Ghoto, was framed by trial Court vide Ex.3, to which they pleaded not guilty and claimed to be tried vide their Pleas Ex.3/A to 3/D respectively.

In order to prove its case, prosecution examined complainant A.S.I Ali Gul Siyal, at Ex.4, who produced DD entry No.22 at 2200 hours, memo of arrest, search and recovery, F.I.R, memo of inspection of injuries of injured accused Muhammad Hanif Mirani, memo of inspection of place of incident, recovery of empties and recovery of blood-stained earth, memo of Taswar arrest of accused Muhammad Sadique Ghoto, CRO of accused and FSL report No.1744/20 Larkana, dated 01.9.2020 as Ex.4/A to 4/H respectively. Mashir, HC Muhammad Shahban Korai was examined at Ex.5. Thereafter, side of prosecution was closed vide Statement of learned DDPP Ex.6.

Thereafter, statements of the accused under Section 342 Cr.P.C. were recorded vide Ex.7 to 10 respectively, wherein they denied the allegations of prosecution and professed their innocence. However, they neither examined themselves on oath, under Section 340 (2) Cr.P.C. nor led any evidence in their defence.

After formulating the points for determination, recording evidence of prosecution witnesses and hearing counsel for the parties, learned trial Court vide impugned judgments convicted and sentenced all the accused, as stated above, hence these appeals.

I have heard learned counsel for the appellants, so also learned Additional P.G. appearing for the State. I have also gone through the evidence adduced before the trial Court and perused the material made available on record.

Mr. Shabir Ali Bozdar, learned counsel for appellant Mohammad Hanif, submitted that case against the appellant is false and fabricated one and no such incident as alleged had occurred. He next submitted that appellant Mohammad Hanif was taken away by the police from his house on 17.8.2020 and such news was flashed in Sindhi Daily Newspaper ‘Koshish’ vide its issue dated 18.8.2020. He focused upon the news clipping available as Annexure ‘D’ at page 55 of the Court file of Appeal No.50/2021. He further submitted that complainant of this case made demand of huge amount as an illegal gratification which the appellant refused to pay, therefore, he was half-fried at police station and later on was shown tohave been captured after an encounter though no such encounter had taken place. He further submitted that alleged encounter lasted for 10 minutes, but surprisingly enough not a single injury was sustained by any member from police party even their vehicle did not sustain a single bullet mark, through which it could be deduced that the incident, as shown, did occur. He further submitted that main allegation against the accused in the prosecution case is that appellant alongwith co-accused was standing at the road aiming to commit robbery but prior to this incident or even after this occurrence no case of like nature was reported by any individual at P.S. Belo Mirpur, therefore, basic ingredient for applying section 402 PPC is also lacking in this case. He further submitted that no offence with regard to robbery was committed and merely the appellant has been shown to have been found at a particular place, hence the prosecution has failed to discharge its liability against to prove its case against the appellant, therefore, the impugned judgment is devoid of force and is liable to be set aside. As far as recovery of offensive weapon (being an offshoot case) being Crime No.40/2020 registered at P.S. Belo Mirpur under Section 24 of Sindh Arms Act, 2013 is concerned, he submitted that it was also foisted upon appellant Mohammad Hanif by the police in order to strengthen the rope of their false case. He further submitted that recovery of the offensive weapon was allegedly effected on 18.08.2020 whereas it was delivered to the Laboratory for its examination on 31.8.2020 i.e. after a delay of about 13 days and no plausible explanation has been furnished by the I.O. as to how and why the weapon was kept for such a long period and in whose safe custody the same was kept. He, in support of the argument, has drawn attention of the Court towards FSL report available at page 73 of the paper book. He prayed that appellant may be acquitted of the charge by extending him benefit of doubt. In support of his contentions, he placed reliance upon the case reported in case Rasool Bux v. The State (2021 YLR 1906), Baptist v. The State (2021 YLR 1273) and Arshad through Central Prison v. The State (2021 P.CR.L.J. 272). Learned counsel submitted that since appellant Mohammad Hanif deserves to be acquitted of the charge in the main case in Cr. Appeal No.S-50/2021, therefore, he would also be entitled to be acquitted in the offshoot case under the SAA vide Cr. Appeal No.S-51/2021.

Mr.Wazir Ahmed Ghoto, learned counsel for the appellants in Cr. Appeal No.S-47 of 2021 submitted that appellants were not arrested by the police from the spot and nothing incriminating was recovered from their possession. He also submitted that they had learnt through newspaper that co-accused Mohammad Hanif was captured by the police on 17.8.2020 and subsequently was shown to have been arrested in injured condition on 18.8.2020. However, the appellants were not aware of the case registered against them and after registration of FIR when police raided their houses, they learnt that a false criminal encounter case was registered against them alongwith accused Mohammad Hanif. He also adopted the arguments advanced by learned counsel appearing for appellant Mohammad Hanif and submitted that appellants being innocent may also be acquitted of the charge by extending them benefit of doubt.

On the other hand, Mr.Syed Sardar Ali Rizvi, Additional Prosecutor General, opposed the appeal to the extent of appellant Mohammad Hanif, while did not oppose Criminal Appeal No.47/2020. He; however, could not controvert the fact that newspaper clipping in respect of arrest of Mohammad Hanif was printed on 18.8.2020, whereas appellant Mohammad Hanif was shown to have been arrested on the same date at 1130 hours of night and the newspaper was circulated and printed about 24 hours prior to the incident. Learned DPG submitted that said piece of evidence though was available with the appellant Mohammad Hanif was not adduced by him before trial Court at the time of recording his statement under Section 342 Cr.P.C. He, therefore, admitted that it might be the fault of his advocate which may not vitiate the right of defence of the appellant.

The prosecution evidence is confined only to two witnesses namely, complainant ASI Ali Gul and mashir HC Shaban.

Complainant ASI Ali Gul in his evidence deposed that on 18.8.2020 being posted as ASI at Police Station Belo Mirpur, he alongwith his subordinate staff namely, HC Muhammad Shahban, PC Sabir Hussain, PC Sajjad Ahmed and DPC Hussain Ahmed had left the police station in police mobile No.SPC-344 for patrolling purpose. During the course of patrolling, at 2330 hours, when they reached at Taree Plot, situated at Bago Daho, link road, on the light of police van, they saw that five culprits namely Muhammad Hanif Mirani, Sadique Ghoto, Muhammad Nawaz Siyal, Manzoor Ahmed Ghoto and Riaz Ghoto, all armed with fire arm weapons, were standing there. The culprits indicated to stop for robbing them. They got stopped police mobile, alighted from it and as soon as the culprits saw them in police mobile and uniform, they made straight firing upon them, therefore, they also opened fires upon the culprits in their self-defence. Firing lasted for about ten minutes. Thereafter, they heard cries of one culprit, who was telling his companions that he got injured in the firing. Upon this, police party encircled the culprits and apprehended one injured culprit, while rest four culprits fled away from the spot taking advantage of darkness. On query,the apprehended culprit disclosed his name as Muhammad Hanif son of Momin, by caste Mirani. The complainant secured one pistol with magazine lying near apprehended culprit. The accused failed to produce license for said pistol. After completing necessary formalities, the accused and the secured property were brought at P.S. Belo Mirpur where FIR No.39/2020 was lodged on 19.8.2020 at 0040 hours under Sections 399,402,324,353,148 and 149 PPC, against all the accused persons, where as a separate FIR No.40/2020 under Section 24 SAA, 2013 was also registered at 0350 hours, against accused Muhammad Hanif on behalf of the State. The complainant sent injured accused Muhammad Hanif to DHQ Hospital Mirpur Mathelo through HC Muhammad Shahban for medical treatment, examination and certificate. Accused Sadique Ghoto was confined at P.S. B-Section Ghotki, in other cases, bearing crime Nos.40/2020 and 41/2020 of P.S. B-Section Ghotki, as such complainant also arrested him in this case and prepared such Memo of his imaginary arrest. After completing all formalities in the investigation, he handed over case papers to SHO for submission of challan before the Court of Law.

In his cross-examination he admitted that bloodstained earth was not available in Court. He also admitted that he was complainant as well as I.O. of the case. He further admitted that encounter took place in the jungle which was consisted of all kinds of trees. He further admitted that accused Riaz, Manzoor and Sadique were not arrested on the spot and that S.H.O. alongwith his staff followed the escapers. He further admitted that he collected empties from place of incident and that he sealed empties at P.S.

The evidence of mashir HC Muhammad Shahban Korai is also on the same line. In his cross-examination he admitted that they saw the culprits at the distance of 500/600 feet who were standing in darkness and they identified the accused on flash of police mobile and that culprits had no hand torch. He also admitted that no fire hit any tree.

It seems that there are certain contradictions in the evidence of prosecution witnesses so also they have made certain admissions which go in favour of the accused and weakens the case of prosecution.

P.W. ASI Ali Gul in his cross-examination admitted, “We left place of incident at about 0340 hours for P.S.”This is obvious 03.40 of the night on 19.08.2020 as the time of alleged incident has been shown as 2330 hours (11.30 p.m.) on 18.08.2020. Thus, said statement of ASI Ali Gul is contradictory to the time of lodging of F.I.R. of alleged incident as mentioned in the F.I.R. i.e. 0040 hours i.e. 12.40 of the night on 19.08.2020. It is not understandable that when the police party left the place of incident at 03.40 a.m. i.e. in the midnight of 19.8.2020, then as to how they got registered F.I.R. three hours prior to this at 12.40 a.m.

Another glaring contradiction in between the statement of complainant ASI Ali Gul made in his evidence and the one made in the F.I.R. is that in his cross-examination he admitted, “It is a fact that accused Riaz, Manzoor and Sadique were not arrested on the spot. S.H.O. along with his staff followed the escapers.”On the other hand, F.I.R. is totally silent about this fact. There is, at all, no mention in the F.I.R. that S.H.O. alongwith other subordinate staff was also accompanying ASI Ali Gul and his subordinates in another police van at the time of alleged incident, or even that after the alleged incident when other culprits except accused Mohammad Hanif made their escape good, he informed the S.H.O. about this fact and consequently S.H.O. followed the said accused persons.

Furthermore, ASI Ali Gul in his cross-examination stated, “On the next day of incident, we left P.S. for site inspection at 0700 hours. Mashirs accompanied with me from P.S. The distance between P.S. and spot would be about 11 kilometers. I consumed about 10/12 minutes from P.S. to place of incident for site inspection.”On the other hand, mashir, HC Shaban in his cross-examination made such statement which is in contradiction with the statement of ASI Ali Gul. He stated, “It is fact that there was jungle…………We consumed about 20 minutes from P.S. to place of incident on the next day of incident. We consumed about 30 minutes on the spot on the next day. We reached at the place of wardat at about 0700 hours.”Apart from this in the Memo of Inspection, the time of its preparation has been shown as 0700 hours. Now, taking the statement of ASI Ali Gul, if they left the police station at 0700 hours and keeping in view the distance between P.S. and the spot i.e. 11 kilometers, as admitted by ASI Ali Gul, and the place of incident being located in jungle, as admitted by mashir Shaban, it should have taken at least 30 to 40 minutes in reaching the place of incident, meaning thereby they would have reached at the spot at about 7040 hours, but according to mashir Shaban, they reached at the spot at 0700 hours which is also the time of preparation of memo of inspection. This is glaring contradiction which creates doubt in the prosecution story.

Besides, there is also another contradiction in the F.I.R. and the evidence of ASI Ali Gul, regarding the distance in between the P.S. and the place of incident, inasmuch; according to ASI Ali Gul, such distance was about 11 kilometers whereas in the FIR it has been shown as 4/5 kilometers.

There seems to be one material discrepancy / loophole in the investigation of instant case. Admittedly, ASI Ali Gul was heading the police party during the encounter with the accused persons; besides, it is ASI Ali Gul who lodged the FIR and has figured as complainant of the case. Despite that he himself conducted investigation of the entire case. Such conduct on the part of police officials has not been appreciated by the Superior Courts, being violative of Police Order (22 of 2002) and Police Rules, 1934. In fact, in such an eventuality, the Investigating Officer who himself is the complainant cannot be expected to collect and preserve evidence which goes against his case and that such Investigating Officer cannot properly perform duties like an independent and fair Investigating Officer. In the case of Agha QAIS Vs. The State reported in 2009 P. Cr.L.J. 1334, Honourable Lahore High Court, while dealing with this point exhaustively, held as under:

“As pointed out above, P.W.5 acted as complainant, witness and Investigating Officer. Under the law, complainant and accused are two opponent parties. In other words, they are two contesting parties. Role of an Investigating Officer is of a neutral authority whose object is to unearth the truth. The Investigating Officer cannot be a part or a member of a party in a case which he is investigating. In this regard, guidance may be sought from Chapter 25 of Investigation from Police Rules, 1934. Rule 25.2(3) reads as under:-

"It is the duty of an Investigating Officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person."

The language of Rule 25.2 above noted clearly requires of an Investigating Officer not to commit himself prematurely to any view of the facts for or against any person. This cannot be expected from an Investigating Officer who himself is a party. As a matter of fact, concept of honest investigation is based on non-partisanship and neutrality. The reason and spirit of separating investigation wing from the operation wing of police also emanates from the same fact which reflects in Article 18 of the Police Order, 2002, therefore, we feel that element of honest, transparent and fair investigation lacks in the instant case. The same point has been discussed by the learned Sindh High Court reported in Nazir Ahmad v. The State PLD 2009 Kar. 191. The Honourable Supreme Court has analyzed the above point from another angle also. According to the Honourable Supreme Court, Investigating Officer is an important witness for the defence also and in case he acts as a complainant and raiding officer, the defence is deprived of his very precious right at the same time and is forced not to depend upon the same. The Federal Shariat Court also observed that such an investigation is biased investigation. (Ashiq alias Kaloo v. State 1989 PCr.LJ 601). In State v. Bashir and others 1998 SC 408, the Honourable Supreme Court observed that "as observed above, Investigating Officer is as important witness for the defence also and in case the head of the police party also becomes the Investigating Officer, he may not be able to discharge his duties as required of him under the Police Rules".

In this context, reference can also be made to the case of Nazeer Ahmed Vs. The State reported in PLD 2009 Karachi 191, wherein this Court held that Police Officer who himself is the complainant cannot be expected to collect and preserve evidence which goes against his case and that such Investigating Officer cannot properly perform duties of an independent and fair investigating officer. Similar observations were also made in the cases reported as Mohammad Siddique Vs. The State (2011 YLR 2261 [Karachi]) and Mohammad Akram Vs. The State(1995 MLD 1532 [Peshawar]).

Even Honourable Supreme Court in the case of Zeeshan alias Shani Vs. The State (2012 SCMR 428), has not appreciated that in a case of police encounter investigation is conducted by the same investigating agency. It was held as under:

“11. The standard of proof in this case should have been far higher as compared to any other criminal case when according to the prosecution it was a case of police encounter. It was, thus, desirable and even imperative that it should have been investigated by some other agency. Police, in this case, could not have been investigators of their own cause.Such investigation which is woefully lacking independent character cannot be made basis for conviction in a charge involving capital sentence, that too when it is riddled with many lacunas and loopholes listed above,…..”

It is also of worth-importance that according to prosecution case, the police party recognized the culprits in the light of police mobile, whereas the place of incident was situated in a jungle and the time of incident was also in the dark hours of the night and admittedly the distance between the police party and the culprits was about 700/800 feet. Complainant ASI Ali Gul in his evidence deposed, “During the course of patrolling, at 2330 hours, when we reached at Taree Plot, situated at Bago Daho, link road, where on the light of police mobile, we saw that five culprits namely, Mohammad Hanif, Sadique Ghoto both armed with pistols, Mohammad Nawaz Siyal, Manzoor Ahmed Ghoto and Riaz Ghoto, all armed with K.Koves were standing there.” This is nearly impossible and seems to be unbelievable that the police party would recognize the culprits in the light of police van who were standing at a distance of about 700/800 feet in the darkness of the night and more particularly the place of incident was a jungle where admittedly all types of trees were available. It is also unique on the part of the complainant that he identified each of the culprits by name and with the fire-arm which allegedly he was holding at the time of incident.This casts serious doubt in the prosecution story, as stated by the complainant. In this context, reliance may be placed upon a decision delivered by a Division Bench of this Court in the case of Bengul Vs. The State, reported in 2019 P.Cr.L.J. 1351 [Sindh (Larkana Bench)], wherein it was held as under:

“Now there remains the evidence of PW/PC Ali Gohar who happened to be injured witness of the incident. It was stated by him that he identified the appellant and others under headlight of passerby Mazda pickup and search light that too from the distance of 100 yards. The identity of the appellant and others at night time, under headlight of passerby Mazda pickup and search light that too from the distance of 100 yards is appearing to be weak piece of evidence.”

Another significant aspect of the case is that although, according to complainant ASI Ali Gul,the exchange of firing continued for about ten minutes; however, despite this none of the police officials sustained any injury, nor is there any scratch on the police mobile. This also creates doubt in the prosecution version.

A Division Bench of this Court in a recent decision delivered in the case of Arshad Vs. The State, reported in 2021 P.Cr. L.J.272 [SINDH], while dealing with this point, held as under:

12. From bare reading of above evidence, it is unbelievable that accused person were apprehended by the police along with weapons on the spot and alleged encounter lasted for few minutes but none from the police party or anybody else from public sustained any scratch on their body and the culprits who were having pistols and dared to open straight fire on police suddenly stopped firing after two shots by each though they had more live bullets with them. The stark failure to bring evidence of cause of death of accused Syed Owais Hussain Jaffery by police firing in retaliation leads to irresistible believe that neither the accused was killed by the police firing in this incident nor he was on the motorcycle with the appellant who has not sustained any injury in the encounter with police party.”

In another case of Mohammad Amir and others Vs. The State (2020 MLD 1777) [Sindh), another Division Bench of this Court held as under:

“11. Close scrutiny of the evidence reflects the prosecution story to be unnatural and unbelievable as according to prosecution an encounter took place at MalirNadi Band Karachi on 29.06.2019 at 0200 hours, between accused and police party said to be a case of cross-firing, with sophisticated weapons wherein one accused was caught hold in injured condition. It is quite unbelievable, for the reason that alleged encounter continued for considerable time, with sophisticated weapons but not a single injury/scratch was caused to any police official, any passerby or to police mobile, even to the motorcycle of accused persons; and it hits to the appellant Muhammad Amir while selecting his leg.”

There is yet another lacuna / discrepancy in the investigation of the case. According to complainant ASI Ali Gul, on the same day of incident i.e. 18.8.2020, while capturing accused Mohammad Haneef in injured condition, he also secured one pistol with magazine lying near apprehended accused; however, as per FSL report, the crime weapon alongwith crime empties were received in Forensic Science Laboratory, Larkana on 31.08.2020. No explanation has been furnished by the prosecution as to why the crime weapon was sent to FSL after a delay of 12 days, nor is there any indication in the prosecution evidence that after securing the crime weapon, the same was deposited in safe custody / Malkhana during the intervening period. In the case reported as Samandar @ Qurban and others Vs. The State reported in 2017 MLD 539 Karachi, while dealing with the point of delay in sending the weapon to Ballistic Expert, this Court held as under:

“Apart from above sending of crime weapon to ballistic expert for forensic report with delay of 20 days of their recovery also added further doubt into the prosecution case, thus in view of above coupled with non-compliance of section 103, Cr. P.C., it can safely be presumed that alleged recovery of crime weapon was not made from the possession of the appellants as alleged by the prosecution.”

In the case reported as Yaqoob Shah Vs. The State(1995 SCMR 1293) Honourable Supreme Court held that the report of the Fire-Arm Expert was of no avail to the prosecution as the crime empties and the fire-arms allegedly recovered from the accused were sent to Forensic Science Laboratory after delay. Reference in this respect may also be made to the decision reported as Ghulam Hussain and two others Vs. State (1998 P.Cr.L.J.779). In the circumstances, report of the ballistic expert, even might be in positive, would lose its sanctity.

Before parting with this judgment, it may be observed that in a case of police encounter, it is not appreciable that case should be investigated by the same investigating agency. Such dictum has been laid down by the Honourable Supreme Court in case of Zeeshan alias Shani versus The state (2012 SCMR 428). Relevant portion is reproduced as under:-

“11. The standard of proof in this case should have been far higher as compared to any other criminal case when according to the prosecution it was a case of police encounter. It was, thus, desirable and even imperative that it should have been investigated by some other agency. Police, in this case, could not have been investigators of their own cause. Such investigation which is woefully lacking independent character cannot be made basis for conviction in a charge involving capital sentence, that too when it is riddled with many lacunas and loopholes listed above, quite apart from the afterthoughts and improvements. It would not be in accord of safe administration of justice to maintain the conviction and sentence of the appellant in the circumstances of the case. We, therefore, by extending the benefit of doubt allow this appeal, set aside the conviction and sentence awarded and acquits the appellant of the charges. He be set free forthwith if not required in any other case.”

The accumulative effect of the above said infirmities / legal flaws in the prosecution case is that serious dents have been put and doubts have been created in the prosecution case. It is well settled principle of law that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt and that in case any doubt has arisen in the prosecution case, the accused is entitled to be extended benefit of such doubt as a matter of right. In the present case, there are many circumstances which create doubts in the prosecution case. Even an accused cannot be deprived of benefit of doubt merely because there is only one circumstance which creates doubt in the prosecution story. In the case reported as Tariq Pervaiz vs. The State 1995 SCMR 1345 the Honourable Supreme Court held as under :-

“The concept of benefit of doubt to an accused is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.”

In the above circumstances, the accused / appellants are entitled to be acquitted of the charges levelled against them by prosecution.

So far as the case under the Sindh Arms Act, 2013 against appellant Mohammad Hanif, for which he has preferred Cr. Appeal No.S-51 of 2021, is concerned, suffice it to observe that now it is well settled that if an accused has been acquitted in the main case then he is also entitled to be acquitted in the case which is offshoot of the main case. In the instant case, both the offences were allegedly committed by appellant Mohammad Hanif simultaneously, therefore, when he has been declared to be entitled to acquittal in the main case of police encounter, then he is also entitled to be acquitted in the off-shoot case under SAA, 2013. In this context, reference may be made to the case of Yasir Chaudhry Vs. The State reported in 2012 MLD 1315, wherein it was held by Honourable Lahore High Court as under:

“In the case reported as Manjhi v. The State (PLD 1996 Karachi 345) it has been held that when the accused has been acquitted in the main case, he would become entitled to acquittal in a case which is offshoot of the said case. Same is the position here, as the present case is an offshoot of the main murder case. So, respectfully following the dictum laid down in the judgment supra, this petition is allowed and the application of the petitioner under section 249-A Cr. P.C. is accepted and the petitioner is acquitted from the charge in case F.I.R. No.17 of 2003 dated 12.1.2003 registered under section 7 of the Surrender of Illicit Arms Act No.XXI of 1991 with Police Station Civil Lines, Bahawalpur.”

For the aforesaid reasons, by a short order dated 19.11.2021, all the aforesaid three appeals were allowed and the impugned judgment dated 21.06.2021 handed down byIII-Additional Sessions Judge, Mirpur Mathelo in Sessions Case No. 283 of 2020, (re- State Vs. Muhammad Hanif and another), arising out of FIR No.39/2020 under Sections 399/402/324/353/148/149 PPC registered at P.S. Belo Mirpur, as well as the Judgment dated 21.06.2021 also handed down by III-Additional Sessions Judge, Mirpur Mathelo passed in Sessions Case No. 121 of 2020, (re- State Vs. Muhammad Hanif), arising out of FIR No.40/2020 under Section 24 of Sindh Arms Act, 2013, registered at P.S. Belo Mirpur, were set aside. Consequently, appellants Mohammad Hanif, Mohammad Sadique, Manzoor Ahmed and Riaz were acquitted of the charges. They were present on bail, therefore their bail bonds were cancelled and surety furnished by them was discharged.

Above are the reasons for the said short order.

JUDGE

Ihsan