IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Appeal No.S-98 of 2021

Appellants Liaquat Ali and Sakhawat Ali through M/S Manzoor Hussain N. Larik and Waqar Ali Phulpoto Advocates

Respondent The State through Mr. Syed Sardar Ali Shah, Additional P.G, Sindh alongwith ASI Muhammad Chuttal Bhelar of PS Sobhodero District Khairpur, Mir’s

Date of hearing 12.09.2022

Date of Judgment 12.09.2022

J U D G M E N T

Muhammad Saleem Jessar, J:- Through this Crl. Appeal, the appellants Nazeer alias Leemon S/o Manzoor Hussain (who has been released after completion of his sentence), Liaquat Ali and Sakhawat Ali (both present in Court on bail) have assailed the judgment dated; 17-11-2021, passed by the learned Court of Additional Sessions Judge, Gambat, District Khairpur, Mir’s, in Sessions Case No.669 of 2020, arising out of Crime No.67/2020, registered at PS Sobhodero, District, Khairpur, Mir’s, Re-The State Vs. Nazeer alias Leemon & two others, whereby the appellants were convicted for offences punishable under Sections 401, 324, 353, 337-F(ii) of PPC and sentenced them to suffer R.I for two years for each of first three offences. Accused were further sentenced to pay Daman of Rs.50,000/- to injured PC Ali Muhammad Narejo and in default of payment of Daman accused shall suffer S.I for six months more while extending benefit of Section 382-B Cr.P.C.

2. Facts of the prosecution case, as unfolded by the complainant in his FIR are that on 15.07.2020, police party of Police Station Sobhodero, District Khairpur Mir’s, headed by complainant ASI Muhammad Chuttal Bhellar left for patrolling and when they reached near Banana orchard on link road between Sobhodero and Pindo Motayo in Taluka Sobhodero, they found that accused Nazeer alias Leemon, Liaquat Ali and Sakhawat Ali being armed with deadly weapons formed a gang to commit some heinous crime and one motorcycle was parked near them. When police asked accused to surrender, latter opened fire upon police with intention to commit their qatl-i-amd aims to deter the police from discharging their lawful duty. Police party also retaliated in their defense. The encounter continued for ten minutes during which accused Nazir alias Leemon sustained injury on his left leg, so also PC Ali Muhammad Narejo sustained firearm injury on his left leg. Finally, police succeeded to arrest all three accused along with weapons with them. They arrested the accused and seized the empties fired by both the sides under a joint memo, hence this case.

3. The learned counsel for appellants Liaquat Ali and Sakhawat Ali submits that co-appellant Nazeer alias Leemon was taken away by police from his home and police had made demand of huge amount as illegal gratification, which the appellant had refused to pay, therefore, complainant of this case/police officer became annoyed and by taking summersault had implicated them in this false crime/case by showing a fake police encounter. He next submits that co-appellant Nazeer alias Leemon was half fried and instant false story has been cooked-up/engineered to strengthen the rope of their false allegations. He further argued that role attributed to co-appellant Nazeer alias Leemon and present appellant Liaquat Ali is that they both duly armed with weapons allegedly made fires upon the police party and in result, thereof, one PC Ali Muhammad (Ex.5) had sustained injuries on his leg; however, in his evidence before the learned trial Court, he (the injured PW/PC) did not specify that who caused injury to him, therefore, there was general allegation against co-appellant Nazeer alias Leemon and present appellant Liaquat Ali. As far as the role against present appellant Sakhawat Ali is concerned, he was alleged to have lathi in his hand but he did not use the same. Present appellant Sakhawat Ali is brother of co-appellant Nazeer alias Leemon and present appellant Liaquat Ali is their uncle, therefore, it is also beyond imagination that a person can commit such a crime alongwith his elders of family. He further submits that appellant Nazeer alias Leemon has been released after completion of his sentence and opted not to contest the appeal. He further submits that by granting instant appeal, present appellants may be acquitted of the charge as the prosecution has failed to establish its charge against them. He further submits that there was joint memo with regard to their arrest as well as recovery, which is illegal and is not permitted by the law. In support of his contentions, he places reliance upon the cases of Tanveer alias Rabail and another v. The State (2012 YLR 2026), Muneer Malik and others v. The State through P.G. Sindh (2022 SCMR Page 1494) and Abdul Rehman and others v. The State and others (2020 MLD 342).

4. On the other hand, Syed Sardar Ali Shah, learned Additional P.G, Sindh does not oppose the appeal to the extent of appellant Sakhawat Ali as he was having lathi and did not use it. As far as the appellant Liaquat Ali is concerned, learned Additional P.G opposes the appeal on the ground that the appellant Liaquat Ali was armed with pistol and has made fire upon the police party, whereby deterred them in performance of their lawful duties, he; however, could not controvert the fact that the fire allegedly made by the appellant Liaquat Ali was not specified even the injured PC / PW Ali Muhammad had not specifically deposed against any of the accused regarding the injury, he allegedly sustained.

5. I have heard the learned counsel for appellants Liaquat Ali and Sakhawat Ali as well as learned Additional P.G, Sindh for the State and have gone through the material made available before me on record. It appears that an alleged police encounter held between police party and accused, whereby one of the accused/co-appellant Nazeer alias Leemon had sustained fire arm injury at his leg, whereas appellants Liaquat Ali and Sakhawat Ali did not sustain even a scratch on any part of their body. Simultaneously, injured PC Ali Muhammad had sustained injury on his leg yet he did not specifically implicate any of the accused during trial through which it could be deduced that he had sustained the injury while he was member of the police party. The non-sustaining injury on the part of appellants Liaquat Ali and Sakhawat Ali show that they had not participated in the crime and as per defense, they subsequently were arrayed and soon arrested by the police only to strengthen the rope of their false case. Though the alleged encounter lasted for about 10 minutes yet no allegation has been brought on record to believe that the appellants had repeated their fire arms through which it could be believed that they had intention to commit Qatl-i-Amd of the police party or to deter them from performing their lawful duty. Besides, there is a joint memo of their recovery and arrest, hence, such practice on the part of prosecution is a weakest type of evidence and cannot be relied upon to maintain the conviction against the appellants. In case of Muneer Malik and others v. The State through P.G. Sindh (2022 SCMR Page 1494) (supra), the Honourable Supreme Court of Pakistan while dealing with the identical issue has held in following terms;

“……..So far as the conviction of the appellants under section 13(e) of the Arms Ordinance is concerned, we have noted that recovery memo and site plan reveal that on 27.05.2007 accused persons while in Police custody jointly led to the recovery of weapons of offence i.e. one Kalashinikov and a T.T. Pistol from a fish pond of one Muhammad Hanif Malik, which in all eventualities is an open place. Nothing has been mentioned as to which of the appellant had first led to the recovery or pointed out the place of recovery and in absence of the same, joint recovery of weapons of offence is of no evidentiary value……..”

6. Moreover, the alleged weapons as well as the empties were recovered on 15.07.2020 and such empties were sent to Laboratory on 05.08.2020 with delay of about 23 days and no explanation in respect of such an inordinate delay of about 23 days was offered by the prosecution. In the circumstances, the positive FSL Report cannot be relied upon for maintaining the conviction against the accused. Reliance can be placed upon the case of Muhammad Amir and others v. The State (2020 MLD 1777).

7. Moreover, the appellants were allegedly shown to be ridding a motorcycle, which was used in the commission of offence and was also recovered by the police as is evident from recovery memo, yet such motorcycle was not produced before the learned trial Court even was not shown to the appellants at the time of recording their statements u/s 342 CrPC. Reliance can be placed upon the case of Abdul Majeed alias Jawa v. The State (2022 YLR 1938). In the case of Abdul Majeed (supra), the learned Divisional Bench of the Balouchistan High Court has held in para No.12 of the judgment as under;

“……..The prosecution has alleged that the motorcycle used in commission of crime by accused has taken into possession, but there is no evidence how the prosecution presumed that the motorcycle is the same which is used in commission of the offence. No evidence either documentary or oral available to prove that the motorcycle belonged to the appellant.”

8. The contentions raised by the appellant Liaquat Ali and Sakhawat Ali carries weight and no such incident as alleged has occurred as claimed by the police. In such circumstances, I am of the opinion that prosecution has failed to establish its charge against the appellants Liaquat Ali and Sakhawat Ali beyond any reasonable shadow of doubt. It is by now settled principle of law that for extending benefit of doubt it is not necessary that there should be many circumstances creating doubt but if a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of any accused, then the accused shall be entitled to such benefit as a matter of right but not as a matter of grace or concession. In this regard, reliance is placed upon the case of “MOHAMMAD MANSHA v. The STATE” (2018 SCMR 772).

9. Further, the responsibility to prove its case against the accused squarely rests upon the prosecution and this burden cannot be shifted to the defence. In this respect reference may be made to the case of Mst.Shamshad v. The State (1998 SCMR 854) and Waqar v. Shaukat and others (2006 SCMR 1139).

10. In view of what has been discussed hereinabove, instant appeal to the extent of appellants Liaquat Ali and Sakhawat Ali is hereby allowed. Consequently, the appellants Liaquat Ali and Sakhawat Ali are hereby acquitted of the charge by extending them benefit of doubt. They both are present before this Court on bail, therefore, their bail bonds are cancelled and sureties furnished by them are hereby discharged. As far as case of co-appellant Nazeer alias Leemon is concerned, the appeal in hand to his extent is hereby dismissed.

JUDGE

G.M Mahar.