IN THE HIGH COURT OF SINDH, SUKKUR BENCH, SUKKUR

Criminal Appeal No.S-88 of 2013

Appellant: Dadlo, through

Mr. Shamsuddin N. Kobhar, Advocate

State: Through Mr. Shafi Muhammad Mahar,

Deputy Prosecutor General

Date of hearing: 18.04.2022

Date of decision: 25.04.2022

J U D G M E N T

Zulfiqar Ali Sangi, J: Through this criminal appeal, the appellant has assailed the judgment dated 10.10.2013 (impugned herein) passed by learned Additional Sessions Judge-III, Mirpur Mathelo in Sessions Case No.58/2008 re-“The State v. Dadlo”, arising out of Crime No.186/2008, registered at Police Station Daharki, under Section 13(d) Arms Ordinance, 1965, whereby the appellant was convicted under Section 13 (d) Arms Ordinance and sentenced to suffer R.I for seven years, however benefit of Section 382-B Cr.P.C was extended to him.

2. Briefly the facts of the prosecution case are that on 23.07.2008, complainant Inspector / SHO Abdul Malik Bhutto along with his subordinate staff during patrolling received spy information at Mangria Pump that accused Dadlo Kobhar required in Crime No.68/2008, u/s 302 PPC, is available at his house. On such information complainant along with his subordinate staff proceeded towards the pointed place where encounter took place in which accused Dadlo was arrested in injured conduction and an unlicenced kalashnikov and bullets were recovered from his possession. Hence such FIR was registered against him.

3. After usual investigation challan was submitted against the accused before the Court having jurisdiction. After completing all the legal formalities, the trial court framed charge against the accused to which he pleaded not guilty and claimed trial.

4. The prosecution in order to prove its case has examined PW-01 HC Bahram at Ex.5, who produced mashirnama of arrest and recovery at Ex.5-A, PW-2 Inspector Irshad Ahmed Gabol at Ex.6, PW-3 HC Muhammad Ramzan at Exh.7 and PW-4 complainant Abdul Malik at Ex.8, who produced FIR at Ex.8-A. Thereafter learned prosecutor closed the side vide his statement at Ex.9.

5. Statement of accused under Section 342 Cr.P.C was recorded at Ex.10, in which he has denied the allegations of the prosecution and claimed his innocence. However, neither he examined himself on oath nor led his defence evidence. After recording evidence and hearing the parties, learned trial Court convicted the accused as stated above, hence the instant appeal.

6. Learned Counsel for the Appellant has contended that the Appellant is innocent and has falsely been implicated by the police in this case; that there are serious and major contradictions in the evidence of Complainant as well as PWs (mashir); that there is violation of section 103 Cr.P.C as inspite prior information the complainant did not bother to arrange private witnesses or mashirs; that evidence of prosecution witnesses is discrepant, therefore, accused may be acquitted of the charge by extending him the benefit of the doubt.

7. Learned Deputy Prosecutor General has mainly contended that all the PWs have deposed in the same line; however some minor contradictions has been pointed out in their evidence and further submitted that the prosecution evidence is confidence inspiring. Lastly he prayed that by dismissing instant appeal, conviction awarded by the learned trial Court may be maintained.

8. I have heard learned Counsel for the Appellant as well as learned Deputy Prosecutor General and have carefully examined the material available on record with their able assistance.

9. On reassessment of the entire evidence produced by the prosecution it is established that the prosecution has miserably failed to prove its case against the appellant beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence.

10. On careful scrutiny of the evidence of prosecution witnesses it appears that they have given contradictory evidence. Complainant Abdul Malik in his examination-in-chief has deposed that on the day of incident he had arrested accused Dadlo in injured condition along with one Kalashnikov with magazine and also arrested accused Zameer Kobhar with double barrel gun and secured two Motorcycles; one was CD-70 and the other was 125. On the contrary PW Bahram in his examination-in-chief has taken the name of second accused arrested with appellant Dadlo as Abdul Razaque by deposing that on the day of incident police arrested appellant Dadlo and one Abdul Razaque, which creates serious doubt in respect of arrest of accused during encounter.

11. The complainant in his examination-in-chief deposed that he secured two motorcycles; one CD-70 and the other was 125. However, PW Behram and PW Muhammad Ramzan have not deposed a single word about the recovery of two motorcycles, which also casts dent in the prosecution story.

12. The Prosecution witnesses also contradicted each other regarding quantity of recovered bullets. In this regard complainant Abdul Malik has deposed in his examination-in-chief that he secured one Kalashnikov from accused Dadlo and one live bullet from its chamber as well as two magazines containing 65 bullets which reflects that total 66 live bullets of KK were recovered. However PW Behram in his examination-in-chief has deposed that from Kalashnikov five bullets and from magazines 60 bullets were recovered which reflects that 65 live bullets of Kalashnikov were recovered. This witness again contradicted his own statement by deposing in last paragraph of his examination-in-chief that they recovered 70 live bullets of 7.62. While PW Muhammad Ramzan also contradicted both the above named witnesses by deposing in his examination-in-chief that three magazines each containing 30 live bullets were recovered which on calculation would be 90 in number and further deposed that total 63 bullets lying in the court are same. These contradictions in the depositions of above three witnesses also vitiates the prosecution case badly.

13. It has also been alleged by the prosecution that accused Dadlo was arrested in injured condition, however neither the medical certificate of the injured accused was produced nor the doctor was examined who could confirm the prosecution story that accused Dadlo had received fire armed injury during encounter. In such a situation the whole the case of prosecution appears to be doubtful.

14. Appellant Dadlo while recording his statement u/s 342 Cr.P.C had placed on record order dated 23.12.2000 passed by 3rd Additional Sessions Judge Mirpur Mathelo whereby he was acquitted in the case of police encounter. He also placed on record before the trial court a judgment dated 30.12.2010 which reflects that co-accused Abdul Razaque allegedly arrested with present appellant and recovery of DBBL gun was shown from him by police, was acquitted by learned Judicial Magistrate Daharki. Acquittal of the appellant in police encounter case is helpful for the appellant as it was the case of prosecution that during encounter appellant was arrested and weapon was recovered.

15. It is well settled by now that the prosecution is bound to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty is cast upon the accused to prove his innocence. It has also been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In the case of Wazir Mohammad v. The State (1992 SCMR 1134), it was held by Honourable Supreme Court that "In the criminal trial whereas it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution." Honourable Supreme Court in another case of Shamoon alias Shamma v. The State (1995 SCMR 1377) held that "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case.......Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise."

16. It is also settled principle of law that for extending benefit of doubt, it is not necessary that there should be multiple circumstances creating doubt. If a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in the case of Tariq Pervez v. The State (1995 SCMR 1345), wherein the Hon'ble Supreme Court has held as under:-

"The concept of benefit of doubt to an accused persons is deep-rooted in our country for giving him benefit of doubt, 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 will be entitled to the benefit not as a matter of grace and concession but as a matter of right".

17. In view of the above, instant criminal appeal is allowed and the impugned judgment dated 10.10.2013, passed by learned Additional Sessions Judge-III, Mirpur Mathelo in Sessions Case No.58/2008, is hereby set-aside. The appellant is acquitted from the charges and ordered to be released forthwith if not required in any other custody case.

JUDGE

Suleman Khan/PA