IN THE HIGH COURT OF SINDH, SUKKUR BENCH, SUKKUR

Criminal Appeal No.S-89 of 2013

Appellant: Rab Nawaz, 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.73/2008 re-“The State v. Rab Nawaz”, arising out of Crime No.246/2008, 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. Succinctly the facts of the prosecution case are that on 08.09.2008, complainant ASI Muhammad Ashraf Jatt along with his subordinate staff during patrolling received telephonic message from SHO Police Station Daharki that accused Rab Nawaz required in Crime No.68/2008, u/s 302 PPC, is available at Khenjoo Beruta Chowk. On such information complainant along with his staff proceeded towards the pointed place where at about 1730 hours they on the head light of vehicle found a person going armed with K.K whom they had apprehended. On enquiry he disclosed his name as Rab Nawaz Kobhar and further disclosed that the K.K. is without licence. The K.K was found loaded with five bullets. He further disclosed that about six months ago he along with his companions had committed the murder of Muhammad Hayat and Moriro with the said KK. The KK and bullets were sealed at the spot; such mashirnama was prepared and then brought the accused and property at police station where such FIR was registered.

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/I.O ASI Allahdino at Exh.4, PW-2 complainant ASI Muhammad Ashraf at Exh.5 who produced mashirnama of arrest and recovery, FIR and roznamcha entry at Ex.5-A to 5-C. PW-3 HC Muhammad Yousif was examined at Ex.6 and then learned prosecutor closed the side of prosecution vide his statement at Ex.7.

5. Statement of accused under Section 342 Cr.P.C was recorded at Ex.10, in which he has denied the prosecution allegations and claimed his innocence. However, neither he examined himself on oath nor led any defence evidence. After recording evidence and hearing the parties, learned trial Court convicted and sentenced 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 major contradictions in the evidence of prosecution witnesses; that there is violation of section 103 Cr.P.C as despite prior information the complainant did not take any effort to associate 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 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 and sentence 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 ASI Muhammad Ashraf in his examination-in-chief has deposed that during patrolling when they reached at Narly Shakh they received call from SHO PS Daharki regarding absconding Rabnawz. While PW/mashir HC Muhammad Yousif contradicted him on place of receiving call from SHO by deposing in his examination-in-chief that they received call from SHO during patrolling from Dahar turn towards Beruta chowk. Further complainant deposed in his examination-in-chief that they received call from SHO that absconding accused is coming towards Beruta chowk and asked them to hold nakabandi as such they held nakabandi at Beruta chowk and during nakabandi they saw a person coming from the top of the minor towards Beruta chowk. While PW/mashir Muhammad Yousif did not say that accused was coming but he said that accused was standing and deposed in his examination-in-chief that they received call from SHO that absconding accused Rabnawaz is standing at Khenju road Beruta on which they proceeded towards the pointed place where they saw a person having Kalashnikov who on seen them tried to flee away but they apprehended him. Complainant in his cross-examination deposed that the mashirnama was written by HC Muhammad Yousif Chano on his dictation but HC Muhammad Yousif contradicted him on this point and deposed in his examination-in-chief that ASI appointed him and PC Abdul Majeed as mashirs, sealed recovered Kalashnikov and bullets on the spot and prepared such mashirnama of arrest and recovery. Complainant in his cross-examination stated that they tied the arms of accused with ajrak. However HC Muhammad Yousif stated in his cross-examination that they hand cuffed the accused. Complainant stated in his cross-examination that there are shops on both sides of Narly Shakh. While HC Muhammad Yousif in his cross-examination denied about any shop on the northern side. Complainant has not deposed anywhere that he has taken efforts to take private person and stated in his cross-examination that he had not taken any private person from the way while preceded towards the place of incident. While mashir in his cross-examination stated that ASI took efforts to associate private person from village but no one came at the call of ASI. He further deposed that ASI had sent HC Abdul Majeed to call any person from village but complainant has not deposed so. These contradictions in evidence of complainant and mashir makes the case of prosecution highly doubtful.

11. 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."

12. 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".

13. 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.73/2008, is hereby set-aside. The appellant is acquitted from the charge and ordered to be released forthwith if not required in any other custody case.

JUDGE

Suleman Khan/PA