IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No.S-14 of 2022

 

Appellant:                                        Mehboob Ali son of Khair Muhammad Babar

Through Mr. Ali Azhar Tunio, Advocate

 

The State:                              Through Mr. Aitbar Ali Bullo, Deputy Prosecutor General, Sindh.

 

Criminal Appeal No.S-24 of 2022

 

Appellants:                                     (1).      Mashooque alias Kaat son of Rafique

Ahmed Chandio.

(2).      Hizbullah alias Hajjan son of Meer

Muhammad Solangi.

(3).      Gulzar alias Gajoo son of Darya Khan

Khushik.

Through Mr. Ghulam Sarwar Abdullah Soomro, Advocate.

 

The State:                              Through Mr. Aitbar Ali Bullo, Deputy Prosecutor General, Sindh.

 

Date of hearing:                   31.05.2023   

Date of decision:                  31.05.2023

 

JUDGMENT

 

ZULFIQAR ALI SANGI, J.:- Through this common judgment I intend to dispose of instant criminal appeals, which impugn the judgment dated 19.04.2022, handed down by learned Additional Sessions Judge-I/MCTC, Dadu in Sessions Case No.247/2021 emanating from F.I.R. bearing Crime No.80/2021, for offence punishable under sections 324, 353, 398, 148, 149 P.P.C., registered with P.S. K.N.Shah whereby the appellants have been convicted and sentenced as under:

1.    For offence under section 324 and 398 P.P.C. to suffer R.I for seven years and to pay fine of Rs.30,000/-each in default of payment to suffer S.I for three months more.

 

2.    For offence under section 353 read with section 149 P.P.C to suffer R.I for one year and to pay fine of Rs.5000/- each in case of default in payment of fine, they shall suffer S.I for one month more.

 

3.    For offence under section 148 P.P.C to suffer R.I for two years and to pay fine of Rs.10,000/-each; in case of default in payment of fine accused shall suffer S.I for two months more.

          All sentences were ordered to run concurrently with benefit of section 382-B Cr.P.C.

2.         The facts in a nutshell are that on 27.04. 2021 at about 2015 hours ASI Ali Bux Pitafi of P.S K.N Shah along with his staff left police station vide Roznamcha Entry No.19 for patrolling, when they reached at Kandichuki road near Achhi Masjid at about 2130 hours, they saw five armed persons standing on road with intention to commit robbery, who by presuming police vehicle to be private one signaled them to stop. The police party identified the accused through headlights of vehicle to be Mashooque @ Kaat, Mehboob Babar, Zahid Chandio, Hizbullah @ Hajjan Solangi and Gulzar Khushik, the police party disclosed their identity to accused and directed them to surrender, on which accused started straight firing upon them with intention to commit their murder in retaliation the police party also exchanged firing in their defence and directed them to surrender, meanwhile accused Mashooque @ Kaat while leaving the pistol on ground raised his hands up cried to save him while remaining accused made their escape good. The police party apprehended accused Mashooque @ Kaat and took the pistol in their possession, on checking its magazine was found empty. ASI conducted body search of accused Mashooque and recovered Rs.150/- in shape of three currency notes of Rs.50/- each from left side pocket of his shirt. The recovered weapon was sealed at spot and then ASI prepared such mashirnama in presence of mashirs HC Muhammad Siddique and PC Nazeer Ahmed. Thereafter accused and case property were brought at Police Station where FIR of this case was registered against all five accused and a separate FIR under Arms Act was also registered against them.

 

3.         The formal charge was framed against the present appellants/accused by learned trial Court, to which they pleaded not guilty and claimed trial.   

 

4.         To establish the accusation against the appellants/accused, the prosecution examined in all three witnesses, who all produced certain items and documents in support of their statements. Thereafter, learned State Counsel closed the side of prosecution.

 

5.         Appellants/accused in their statements recorded U/S.342 Cr.PC, denied the allegations leveled against them by pleading their innocence stating therein that they have been implicated falsely by the police. They however did not examine themselves on oath in disproof of the charge nor led any evidence in their defence.

 

6.         The learned trial Court on appraisal of the material brought on record and hearing counsel for the parties convicted and sentenced the present appellants/accused vide judgment, as detailed above.

 

7.         Per learned defence counsel, the instant case is false and fabricated against present appellants/accused; that the evidence of all the prosecution witnesses being contradictory have no credibility and thus cannot be relied upon without independent corroboration even the recovery of crime weapons is foisted upon the appellants. Summing up his contentions, the learned defence counsel submitted that the present accused have been arraigned in this case, which is discernible from the averments of the F.I.R. , as such the case of prosecution is doubtful and has no foundation against the appellants/accused, therefore, they deserve to be acquitted in the circumstances of case.

 

8.         In rebuttal to above, learned Deputy Prosecutor General for the State contends that all the witnesses have fully supported the case of prosecution and no major contradiction is noticed in their evidence, therefore, learned trial Court finding the appellants/accused guilty of the offence has rightly convicted and sentenced them by way of impugned judgment which calls for no interference by this Court, therefore, the appeals filed by the appellants being devoid of merits are liable to be dismissed.

 

9.         I have heard arguments of learned counsel for the parties and have minutely gone through the material made available on record with their able assistance.

 

10.       The meticulous perusal of the evidence brought on record is entailing that all the witnesses have tried to support the case of prosecution but their evidence on deeper analysis was found unreliable coupled with material improbabilities. The broad features involved in this case are that the complainant and his witnesses while on patrolling in a police vehicle saw five armed persons with intention to commit robbery in the area and according to the prosecution they all started firing upon the police party and ran away, but even not a single injury has been made by such exchange of fires though the firing was allegedly made from the distance of 5/6 feet, which raised question in every prudent mind that five persons who came for committing some offence have not caused any harm to any person or property. Further at or near the place of incident there was no any bank, petrol pump, shopping centre or anything from where dacoity was to be committed. The complainant and other police officials identified all the accused with their parentage and for which they have failed to furnish the source as to how they were identified with their parentage. The prosecution witnesses depose in their respective evidence that on the said date no offence was committed in the area by anybody then how the complainant felt that the appellants were roaming in the area with intention of committing dacoity.  All these facts make the case of prosecution as doubtful.

11.       It is settled that the Court(s) must never be influenced with severity of the offence while appreciating evidence for finding guilt or innocence because severity of an offence could only reflect upon quantum of punishment. Therefore, even such like tragic cases, the Courts are always required to follow the legally established position that it is intrinsic worth and probative value of evidence which plays a decisive role in determining the guilt or innocence and not heinousness or severity of offence. Reliance can be placed on the case of Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274). The rule of benefit of the doubt is essentially a rule of prudence which cannot be ignored while dispensing justice following the law. The conviction must be based on unimpeachable evidence and certainty of guilt and doubt arising in the prosecution case must be resolved in favour of the accused. The said rule is based on the maxim. "It is better that ten guilty persons be acquitted rather than one innocent be convicted" which occupied a pivotal place in the Islamic Law and is enforced strictly because of the saying of the Holy Prophet (PBUH) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent". 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 casted upon the accused to prove his innocence. It has also been held by the Honourable Superior Courts that the 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 case of Wazir Mohammad v. The State (1992 SCMR 1134), it was held by Honourable Supreme Court that "In the criminal trial it is the duty of prosecution to prove its case against the accused to the hilt, but no such duty is casted upon the accused, he has only to create doubt in the case of 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 accused, entitles him/them 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. "Reliance is also placed on case of Naveed Asghar and 2 others v. The State (PLD 2021 SC 600).

12.       The over-all discussion arrived at conclusion that the prosecution has miserably failed to prove the guilt against present appellants beyond shadow of any reasonable doubt and it is a well-settled principle of law that for creating the shadow of a doubt, there should not be many circumstances. If a single circumstance creates reasonable doubt in the prudent mind, then its benefit is always extended in favour of the accused not as a matter of grace or concession, but as a matter of right. In this respect reliance is placed on the case of Muhammad Mansha v. The State (2018 SCMR-772), wherein the Hon’ble Supreme Court of Pakistan has held that:-

“4.        Needless to mention that while giving the benefit of doubt to an accused 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 accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right. It is based on the maxim, “it is better that ten guilty persons be acquitted rather than one innocent person be convicted”. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v.The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)”.

 

13.       Resulting upon above discussion, I am of the judicious view that the learned trial Court has not evaluated the evidence in its true perspectives and thus arrived at an erroneous conclusion by holding present appellants as guilty of the offence. Thus, the instant criminal appeals are allowed; the conviction and sentence recorded against the appellants by way of impugned judgment could not be sustained, the same are set aside and the appellants are acquitted of the charge. Appellants are present on bail, their bail bonds are cancelled and surety discharged.  It is informed that appellant Hizbullah alias Hajjan has been arrested in another custody case, therefore, jail authorities are directed to release him in present case if he is not required in any other custody case.  Office is directed to return the surety papers to the Surety after proper verification and identification as per rules.

14.       The above appeals are disposed of in the above terms.

 

 

 

                                                                                 JUDGE

 

Manzoor