IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No.S-94 of 2017

Appellants: 1). Imdad Ali s/o Hakim Ali Zangejo

                                      2). Ghulam Mustafa s/o Ghulam Umer Solangi

Through M/S. Ghulam Sarwar Soomro and Safdar Ali Ghouri, Advocate(s)

The State:                       Through Mr. Ali Anwar Kandhro, Addl.P.G.

                                      Mr.Habibullah G.Ghouri, Advocate for witness Muhammad Umar Brohi (grandson of complainant/deceased Ghulam Qadir Brohi).

Date of hearing:             16-02-2023

Date of decision:             16-02-2023

JUDGMENT

ZULFIQAR ALI SANGI, J:- The listed criminal appeal is directed against the judgment dated 25.10.2017, passed by learned Special Judge Anti-Corruption (Provincial) Larkana, in Special Case No.13/2013 (Re. St. Vs. Imdad Ali and others), emanating from FIR bearing Crime No.08/2011, for offence punishable Under Sections 161, 467, 468, 477-A, 34 PPC r/w Section 5 (2) Act-II of 1947, registered with Police Station, ACE Kamber-Shahdadkot, whereby the appellants have been convicted and sentenced as under;

Accused Imdad Ali Zangejo was convicted u/s.467 PPC r/w Section 5 (2) of Prevention of Corruption Act-II of 1947 and sentenced to suffer R.I for Three(3) years and fine of Rs.1,00,000/- (One Lac Rupees), in case of default in payment of fine the accused shall suffer R.I for Three (3) months more.

Accused Imdad Ali Zangejo was also convicted u/s.468 PPC read with Section 5 (2) of Corruption Act-II of 1947 and was sentenced to suffer R.I for three(3) years and fine of Rs.1,00,000/- (One Lac Rupees), in case of default in payment of fine the accused shall suffer R.I for three (3) months more. Both sentences of imprisonment awarded to the accused were ordered to run concurrently.

Accused Ghulam Mustafa Solangi was convicted u/s.468 PPC and was sentenced to suffer R.I for three (3) years and fine of Rs.1,00,000/- (One Lac Rupees), in case of default in payment of fine the accused shall suffer R.I for three (3) months more.

The benefit of Section 382-B Cr.PC was also extended to them by the trial court.

2. The facts leading to disposal of instant criminal appeal are that 09.04.2011, SIP Manzoor Ali Chandio, C.O, ACE Office Kamber-Shahdadkot lodged FIR on behalf of the State in which he mentioned that the case is being registered after receipt of permission from the competent authority and as a result of inquiry into complaint No.23/2008 ACE, Shahdadkot, on complaint of Ghulam Qadir Brohi that agricultural land bearing Survey No.684 and others total area measuring (07-16) acres situated in Deh Dera, Tapa Dera was granted to  the complainant from Barrage Department on harap basis and such entry No.496 of VF-VII-B dated 16.02.2002 was kept in favour of complainant on the basis of A-Form No.PE-2450 and T.O Form No.7, dated 27.07.2002 but accused Tapedar Imdad Ali Zangejo in collusion with accused/private person Ghulam Mustafa Solangi by way of fraud and accepting huge bribe amount kept bogus entry No.503 dated 08.01.2003 regarding sale transaction of S.No.684 area (05-16) acres, Deh Dera, Tapa Dera from Ghulam Mustafa Solangi to Mumtaz Ali Chandio through registered sale deed bearing S.No.305 registered No.410, book No.391, dated 30.06.2001 in his favour with bogus signature of Tapedar Dera Allah Rakhio Kalhoro and Mukhtiarkar Muhammad Yaqoob Channa (now expired). Further, Tapedar of Beat namely Anwar Ali Jatoi in his statement disclosed that one leaf has fraudulently been inserted in between leaf No.65, 66 of VF VII-B which transpired that accused Tapedar Imdad Ali Zangejo in collusion with accused/private person Ghulam Mustafa Solangi kept bogus entry regarding above said land of the complainant in his favour and caused wrongful gain/loss to the complainant, for that the present FIR was registered.

3. On completion of usual investigation, the police submitted final report Under Section 173 Cr.PC against the accused before learned trial Court where the formal charge was framed against accused Imdad Ali, Ghulam Mustafa and Mumtaz Ali, to which they pleaded not guilty and claimed trial.

4.      In order to establish accusation against the accused, the prosecution examined in all eight witnesses i.ePW-01 Complainant SIP Manzoor Ali, PW-02 Tapedar Anwar Ali Jatoi, PW-03 Senior Clerk Muhammad Khalid Larik, PW-04 Tapedar Allah Rakhio Kalhoro,    PW-05 Supervising Tapedar Gada Hussain Bhatti, PW-06 SIP Mukhtiar Ahmed, PW-07 Muhammad Umar Brohi and PW-08 DSP Mukhtiar Ahmed Sario who all produced relevant documents in support of their statements. Thereafter, the learned State Counsel closed the side of prosecution.

5.      The accused in their statements recorded in terms of Section 342 Cr.PC, denied the allegations leveled against them by pleading their innocence. However, they neither examined themselves on oath in disproof of the charge nor led any evidence in their defence.

6.      The learned trial on evaluation of the material and hearing counsel for the parties acquitted co-accused Mumtaz Ali while convicted and sentenced the present appellants/accused vide impugned judgment, as discussed above.

7.      Per learned defence counsels, there are material contradictions in the evidence of prosecution witnesses which have shattered the veracity of their evidence; that there is no proof of conversation with regard to giving and acceptance of bribe by the appellants; that there is no recovery of any incriminating article from the possession of the appellants to show their involvement in the present case; that co-accused Mumtaz Ali has been acquitted while believing the same set of evidence which is against the spirit of natural justice. Summing up their contentions, the learned defence counsels submitted that appellants have falsely been arraigned in this case with malice and thus lastly prayed that the case of prosecution is doubtful and the appellants are entitled to their acquittal in the circumstances of case.

8.      On the other hand, learned counsel for the witness conceded the arguments of learned counsel for the appellants and thus raised no objection for acquittal of the appellants. While learned Addl.P.G for the State submits that all the witnesses have fully supported the case of prosecution and no any major contradiction has been noticed in their evidence, therefore, learned trial Court finding the appellant guilty of the offence has rightly convicted and sentenced him by way of impugned judgment which does not call for any interference by this Court, hence, the appeal filed by them being meritless is liable to its dismissal.

9.      Heard learned counsel for the parties and perused the material made available on the record with their able assistance.

10.    The meticulous re-appraisal of material brought on the record is entailing that though the prosecution witnesses have tried to support the case of prosecution but their evidence when scrutinized deeply was found coupled with material infirmities/improbabilities. In that there is conflict in between the direct complaint and evidence of the complainant’s witness on material points. Furthermore, there is no similarity in the averments of the direct complaint as well as FIR. Dispute in respect of ownership of subject land in between the parties is admitted in FIR so also in direct complaint on that a civil litigation is said to be pending adjudication before the Courts having jurisdiction. The signatures of Tapedar Allah Rakhio Kalhoro and Mukhtiarkar Muhammad Yakoob Channa (since dead) were neither got verified during course of investigation from the handwriting Expert by the investigation officer nor was any of the witness produced by the prosecution to establish that as to whether same belonged to them or not. Complainant Ghulam Qadir Brohi who claimed himself to be grantee of the disputed survey number on harap basis was not examined by the prosecution on account of his death and if the claim of Ghulam Qadir Brohi (complainant) with regard to keeping of a fraudulent entry of disputed survey number in the revenue record is believed to be true then why not all these concerned officials who kept the entry in revenue record were nominated as accused and why they were not investigated, thus, failure of such practice obviously led to an adverse inference against the prosecution. Moreover, grandson of the complainant examined at trial, who in his cross-examination has given wavering disclosure, firstly he deposed that the handwriting and signature on the entry is of accused Imdad and later admitted that he is not handwriting expert and nor conversant with his writing. Further, such mutation was executed in the year 1976 much prior to birth of witness Muhammad Umar Brohi who in his cross-examination admitted that complainant Ghulam Qadir Brohi had not discussed during his life time with him in respect of disputed survey number. The said witness admitted that complainant Ghulam Qadir Brohi has two sons but none of them was either examined by investigation officer during course of investigation or produced at trial after demise of the complainant in order to substantiate the claim of the complainant.

11.    The record of Sub-Registrar was not collected during the investigation in respect of the alleged forged registered sale deed on the basis of which disputed entry was made nor any official from the Sub-Registrar office was examined. The entry in respect of the complainant party when was scanned and a query was made in such respect, learned counsel for the private complainant party stated that such civil litigation is pending before the Court having jurisdiction and keeping in view such fact he has no objection that the appellants may be acquitted and the private parties would pursue their civil litigation. Moreover, there is no any piece of evidence available with the prosecution which connects the appellants with commission of the alleged offence. All these improbabilities in the case, as discussed above, have demolished the entire case of prosecution and rendered it highly doubtful.

12.    The prosecution has not been able to produce any convincing evidence to show that at the relevant time appellant Imdad Ali had ever posted as Tapedar of concerned Beat nor was any of the witness examined at trial being revenue officials has deposed even a single word that he had remained posted with them or they were well conversant with his signature. The production of these documents and proof of it are two different subjects. The document could be produced in evidence that was always subject to proof as required under Article 78 of Qanun-e-Shahadat, Order, 1984, which provides that “If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting”. The other aspect with regard to proving of the document is provided under Article 79 of Qanun-e-Shahadat Order, 1984 which provides that “If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence. Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.” The documents relied upon by the prosecution against the appellants were never sent for seeking Expert’s opinion in respect to confirm the signature of the appellants. Thus, the documentary evidence so produced by the prosecution is also not sufficient to maintain the conviction of the appellants.

13.    After the above discussion on oral as well as documentary evidence produced by the prosecution, there appears only evidence of investigation officer forming his opinion about the guilt of appellants. The opinion of a Police Officer who investigated the case as to the guilt or innocence of an accused person, is not a relevant fact, and is therefore not admissible, under the Qanun-e-Shahadat Order, 1984; as he is not an "expert" within the meaning of term as used in    Article 59 of the Qanun-e-Shahadat Order, 1984. Even, the Criminal Procedure Code (Cr.P.C) does not authorize him to form such an opinion. Determining the guilt or innocence of an accused person allegedly to be involved in commission of an offence, is a judicial function that can only be performed by a Court of law. This judicial function cannot be delegated to the Police Officer investigating the case. The Police Officers are empowered under the Provisions of Chapter XIV of the Cr.P.C, only to investigate a non-cognizable offence with the order of a Magistrate and a cognizable offence without such order. This power of investigation, in no way, includes the power to determine the guilt or innocence of the accused persons. An investigation, as defined in section 4(1)(l) of the Cr.P.C, includes all proceedings under the Cr.P.C for the collection of evidence conducted by a Police Officer or by any other person authorized by a Magistrate. This definition makes it clear that the assignment of a Police Officer conducting an investigation is limited to the collection of evidence, and the evidence when collected has to be placed by him before the competent Court of law. Only the Court has the power and duty to form an opinion about the guilt or innocence of an accused person and to adjudicate accordingly based on evidence produced before it. An opinion formed by the investigating officer as to the non-existence or existence of sufficient evidence or reasonable ground of suspicion to justify forwarding of an accused person to a Magistrate Under Sections 169 and 170 of the Cr.P.C does not amount to an opinion as to the guilt or innocence of the accused person. Despite such opinion of the investigating officer, the final determination even as to the existence or non-existence of sufficient ground for further proceeding against the accused person is to be made by the Magistrate Under Sections 173 (3) and 204 (1) of the Cr.P.C on examining the material available on record and not based on the opinion of the investigating officer. Since, the oral evidence of the witnesses of the case and the documentary evidence so exhibited is not believed by this Court, as discussed above, then the evidence of investigation officer only is not sufficient to maintain conviction. The reliance in this context is placed on case of Muhammad Idrees and another v. The State and others (2021 SCMR-621).

14.    Further, it is also a matter of record that though all the accused persons were charged jointly but on one and same set of evidence, the learned trial Court Judge acquitted one of them namely co-accused Mumtaz, excepting the appellants. Legally, the evidence should be believed or disbelieved as a whole and not in parts unless exceptions so justifies because the Criminal Administration of Justice always insist giving benefit of doubt to accused. In case of Sardar Bibi and others v. Munir Ahmed and others (2017 SCMR-344), it was held by the Hon’bleSupreme Court that;“When the eye-witnesses produced by the prosecution were disbelieved to the extent of one accused person attributed effective role, then the said eye-witnesses could not be relied upon for the purpose of convicting another accused person attributed a similar role without availability of independent corroboration to the extent of such other accused”. It is a settled principle of law that no one should be convicted of a crime on the basis of presumption in the absence of strong evidence of unimpeachable character and legally admissible. Similarly, the mere heinous or gruesome nature of crime shall not detract the Court of law in any manner from the due course to judge and make the appraisal of evidence in a laid down manner and to extend the benefit of reasonable doubt to an accused person being indefeasible and inalienable right of an accused. It is also an established principle of law that an accused person is presumed to be innocent until and unless he is proved guilty beyond a reasonable doubt and this presumption of his innocence continues until the prosecution succeeds in proving the charge against him beyond a reasonable doubt on the basis of legally admissible, confidence-inspiring, trustworthy and reliable evidence. It has also been held by the Superior Courts that conviction must be based upon unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused. The rule of giving the benefit of doubt to an accused person is essentially a rule of caution and prudence and is deep-rooted in our jurisprudence for the safe administration of criminal justice. In common law, it is based on the maxim, "It is better that ten guilty persons be acquitted rather than one innocent person be convicted". While in Islamic criminal law it is based on the high authority of sayings of the Holy Prophet of Islam (Peace Be Upon Him): “Avert punishments (hudood) when there are doubts” and “Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him [accused], let him have his way, because the leader's mistake in pardon is better than his mistake in punishment.” The Honourable Supreme Court has quoted probably the latter part of the last-mentioned saying of the Holy Prophet (PBUH) in the case of AyubMasih v. State (PLD 2002 SC-1048) "Mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent." The same principle has also been followed by the Honourable Supreme Court of Pakistan in recent Judgment in case of Naveed Asghar and 2 others v. The State (PLD 2021 SC-600). It is also settled principle of law that if a single circumstance creates reasonable doubt in a prudent mind about guilt of the accused, then the accused 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 case of Tariq Pervez v. The State reported as (1995 SCMR-1345), wherein the Honourable Supreme Court of Pakistan has held as under:-

"The concept of benefit of doubt to an accused person 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 any 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".

15.    The sequel of above discussion is that the prosecution has miserably failed to establish the guilt against the present appellants beyond shadow of reasonable doubt. Consequently, the conviction and sentence awarded to the appellants by learned trial Court vide impugned judgment are set aside; the instant criminal appeal is allowed resulting to acquittal of the appellants. The appellants are present on bail, their bail bonds stand cancelled and sureties are discharged. Office is directed to return the surety papers to the sureties of the appellants after proper verification and identification.

JUDGE

..