IN THE HIGH COURT OF SINDH, CIRCUIT COURT

LARKANA

Crl. Jail Appeal No. D- 35 of 2023.

Present:

Shamsuddin Abbasi, J.

Agha Faisal, J.

Appellant: Sultan Ahmed and others, through Mr. Habibullah G. Ghouri, Advocate.

Respondent: The State, through Mr. Ali Anwar Kandhro, Additional Prosecutor General.

Date of hearing: 07.05.2024.

Date of judgment: 21.05.2024.

Judgment

Shamsuddin Abbasi, J: Through instant appeal, appellants Sultan Ahmed, Jahangir Shah and Nadeem Ahmed have impugned the judgment dated 30.09.2023 passed by Special Judge, Anti-Terrorism Court, Shikarpur, in Special Case No. 12 of 2023, Re; State v. Sultan Ahmed & others, arisen out of F.I.R No. 30 of 2023, registered at Police Station, Saddar, Jacobabad, under Sections 4/5 of the Explosive Substance Act, 1908, and 23 (i)(a) of the Sindh Arms Act, 2013, read with Sections 6/7 Anti-Terrorism Act, 1997, whereby the appellants were convicted and sentenced as under:

(a) For offence under Section 5 of Explosive Substance Act, 1908, read with Section 7 of the Anti-Terrorism Act, 1997, to suffer R.I for seven years.

(b) For offence under Section 24 of the Sindh Arms Act, 2013, to suffer R.I for seven years and to pay Rs.30,000/- fine each and in case of default to pay fine amount to under further S.I for Six months.

(c) The property of appellants also forfeited to the State, as required under Section 5 (1) of Explosive Substance Act, 1908.

All the sentences were ordered to run concurrently and the appellants were extended benefit of Section 382-B Cr.P.C.

2. The accused/ appellants were brought to trial by the prosecution on the allegations that on 14.2.2023 at 2200 hours were apprehended by a police party headed by ASI Khadim Hussain Koheri of P.S Saddar Jacobabad, when they were boarding in Toyota Corolla car being registration No. AYX-655, and recovered one trunk lying in diggy of the car containing three shells of rocket launcher along with its four fuses and 16 SMG magazine.

3. It appears from the record that final report/ challan of the case was filed on 13.4.2023. The learned trial Court framed the charge against appellants at Ex.3, to which they pleaded not guilty and claimed to be tried.

4. In order to prove the charge against the appellants, the prosecution examined in all eight witnesses, who produced on record certain documents/ entries/ reports etc. Thereafter, the Prosecutor closed the side of prosecution vide statement Ex.13.

5. The statements of appellants/ accused were recorded in terms of Section 342 Cr.P.C at Ex.14 to 17, in which they denied the allegations of the prosecution leveled against them. They claimed their innocence and false implication in this case. However, they did not examine themselves on oath, not led any evidence in their defence. After hearing the counsel for the parties, the trial Court convicted and sentenced the appellants as mentioned in the paragraph No.1 of this judgment.

6. Learned counsel for the appellants argued that the judgment passed by the trial Court is much against the law, facts and equity and liable to be set-aside; that the trial Court has failed to appreciate the factual as well as legal aspects of the case while convicting the appellants. He next argued that the evidence adduced by the prosecution at the trial, which is consist upon only police officials, is not properly assessed and evaluated by the trial Court and the evidence is insufficient to warrant conviction of the appellants. Per learned counsel, there is no recover of single bullet from the magazine and there is delay of six days for sending the case property i.e. magazines for FSL report, therefore, tampering with the same cannot be ruled out and that there is also delay of ten days in defusing the rocket shells. It is further contended by learned counsel that the trial Court has erred in concluding that the alleged recovery was effected from the accused in the mode and fashion described by the prosecution and that there are some important and vital contradictions in the evidence of the prosecution witnesses, which prove the entire case as highly doubt and as per well settled law the benefit of even slightest doubt should be extended in favor of the accused. Lastly, he has prayed for setting-aside the impugned judgment and acquittal of the appellants.

7. Learned Addl. P.G. opposed grant of appeal, on the ground that the prosecution has fully established its case by producing trustworthy ocular as well as circumstantial and documentary evidence which includes Technical as well as FSL report in respect of the recovered shells of rocket launcher and magazines and entries etc.

8. We have considered above contentions of the learned counsel for the appellants and learned Additional Prosecutor General and have gone through the entire evidence very carefully.

9. It appears that, the prosecution witnesses examined at trial are all police personnel and no any independent person has been cited or examined by prosecution as mashir/ witness. No doubt, police officials are good witnesses but the Courts are required to examine their evidence very carefully. The appellants were shown to be arrested in the day time from a busy road, but no any independent person from place of incident has been taken as witness or mashir. We are of the view that either a private witness ought to be associated, or some convincing reasons should be given for non-associating a private witness in the recovery proceedings. Though, the evidence of police officials is as good as others, but in a case, where public persons were available at site, and prosecution failed to join them as witnesses, in such circumstances evidence of police officials loses its sanctity and evidentiary value. More-so, when no private person is associated in recovery proceedings although it could have been done easily; such recovery could not be said to have been proved satisfactorily. Reliance in this regard can be had from the precedent established in case reported as 2005 SCMR 1038.

10. It further appears that, as per contents F.I.R the alleged incident took place at 2200 hours. The complainant and PWs have also affirmed this fact in their statements that at 2200 hours the incident happened. The contents of F.I.R and mashirnama show that the police party reached at the spot at 2200 hours pursuant to information and at 2200 hours a car came from Raja Pull, as such police party stopped the car, out of which three persons alighted, who tried to escape but they were apprehended by the police; then complainant enquired about names and addresses of those persons and nominated PC Munir Ahmed and PC Israr Ahmed as mashirs; then the police opened the diggy of the car and recovered trunk containing shells and magazines etc., then culprits were bodily searched, during certain cash and mobiles phones, identity cards etc. were recovered and thereafter, I.O sealed recovered articles separately and prepared mashirnama of arrest and recovery in presence of mashirs. Definitely, all this process must had taken sufficient time, but the mashirnama shows time of its preparation, to be the same time, i.e. 2200 hours.

11. Record further reveals that alleged recovery of was effected on 14.2.2023; however the magazines were sent to Laboratory on 20.02.2023, with delay of about six days and such delay has not been explained. It is well settled law that unjustified delay in sending articles to the experts would draw adverse effect on the case of prosecution.

12. Furthermore, there are material contradictions in evidence of the prosecution witnesses in respect of very crucial and vital points. Complainant ASI Khadim Hussain in his examination-in-chief deposed that, he opened the diggy of car and searched the same, whereupon he found a silver color trunk; whereas, as per evidence of PW H.C Munir Ahmed and P.C Abdul Ghani, the truck recovered was of sky color. Per evidence of complainant on opening trunk he found two white color bachka/ sack lying in it; whereas PW H.C Munir Ahmed in his evidence did not disclose about presence of bachka/ sack, but he deposed in his examination-in-chief that trunk opened and they would three shells of rocket launchers. Per evidence of Complainant he secured one registration book of the car, one Nokia mobile phone and one touch mobile phone from possession of appellant Nadeem Ahmed Tunio. Whereas per evidence of PW H.C Munir Ahmed on personal search of accused Naeem one Nokia mobile and one touch mobile were secured; he has not disclosed about recovery of registration book of the car. The complainant and witnesses have also contradicted each other on the point of number and names of places, which they patrolled before reaching to place of alleged incident. Per evidence of complainant, after leaving police station they patrolled firstly from bypass road, raja petrol pump and then reached at Sundrani Phatak; whereas per evidence of PW H.C Munir Ahmed they patrolled at Afzal baba chowk, Pathar mor, Bolan chowk, raja petrol pump and then at Sundrani phatak. While as per evidence of PW P.C Abdul Ghani they patrolled Lashari service, Eid Gah, Pathan Mor, Tinkundo Bagh, Jamali Wah, Technical College, Boys College, Bolan Chowk, Raja petrol pump and then reached at Sundrani phatak. In his cross-examination the complainant and PW Munir Ahmed deposed that they did not stop at particular place during patrolling, whereas PW Abdul Ghani deposed that they stayed at 2/3 points during patrolling. Per evidence of Complainant, he received spy information through a person at the spot, whereas per evidence of PW H.C Munir and P.C Abdul Ghani, the complainant (ASI Khadim Hussain) received spy information on his mobile phone. Complainant ASI Khadim Hussain deposed that about 8 to 10 vehicles were checked by them from both sides of road prior to arrival of pointed car; whereas per evidence of PW Munir Ahmed after receipt of spy information they started checking of vehicles, during which 2/3 cars were checked; however PW Abdul Ghani deposed that prior to arrival of pointed car, they conducted checking of about 15 / 20 vehicles which were 2/3 cars and motorcycles.

13. Complainant ASI Khadim Hussain deposed that, he himself signaled the car for stopping; whereas PW Munir Ahmed deposed in his cross-examination that, he himself signaled the pointed car for stopping. Complainant stated in his cross-examination that their police mobile was parked at road side at the distance of about five paces away from them; whereas PW Munir Ahmed deposed in his cross-examination that their police mobile was parked at the distance of about 10/15 paces from the place of checking vehicle by them. Per cross-examination of complainant he caught hold accused Sultan Ahmed Chachar and Jahangir Shah while accused Nadeem Ahmed was caught hold by H.C Israr Ahmed; whereas PW Munir Ahmed deposed that two accused persons were caught hold by ASI Khadim Hussain while he caught hold one accused Nadeem, while PW Abdul Ghani deposed that ASI Khadim Hussain caught hold accused Jahangir Shah, whereas he and PC Muhammad Ali caught hold accused Nadeem Ahmed. Complainant deposed that he himself opened the diggy of car; whereas PW Munir Ahmed deposed that PC Abdul Ghani opened the diggy of the car; however PW Abdu Ghani deposed that ASI Khadim Hussain opened the diggy of car. Complainant deposed that mashirnama of recovery and arrest was written by H.C Israr Ahmed on his dictation while putting paper on clipboard by sitting on seat of police mobile; whereas PW Munir Ahmed deposed that ASI Khadim Hussain himself wrote mashirnama of recovery and arrest while putting papers on clipboard in standing position. Complainant deposed that during the period of preparation mashirnama the custody of accused persons were lying with H.C Muir Ahmed, P.C Abdul Ghani and PC Muhammad Hanif who were made to sit on a road; whereas PW/ H.C Munir Ahmed deposed that during preparation of mashirnama the custody of accused was lying with us in police mobile who were sitting in mobile with me and H.C Israr Ahmed. Complainant deposed that he sealed the recovered property with assistance of driver PC Zahid Hussain; whereas PW Munir Ahmed deposed that ASI Khadim Hussain sealed the recovered property. Complainant deposed that thirty (30) minutes were consumed in writing of mashirnama; while PW Munir Ahmed deposed that 15/20 minutes were consumed in writing mashirnama of recovery and arrest. Complainant deposed that hands of two accused tied with one roomal while hands of third accused were tied with a separate roomal; whereas PW Munir Ahmed deposed that the accused hand-cuffed. Complainant deposed that he did not see any private person at place of vardat, therefore, he appointed H.C Munir Ahmed and H.C Israr Ahmed as mashirs; whereas PW Munir Ahmed deposed that ASI Khadim Hussain did not stop any vehicle for asking private persons to act as mashirs, while PW Abdul Ghani deposed that 4/5 laborers were present at the brick-kiln and ASI Khadim Hussain asked them to act as mashir but they refused to do so. I.O SIP Abdul Rasheed deposed that 161 Cr.P.C statements of witnesses/ police officials were written by one WPC who name he do not remember; where PW Abdul Ghani deposed that SIP Abdul Rasheed recorded his 161 Cr.P.C statement which was reduced in writing by him (Abdul Ghani).

14. These glaring contradictions in evidence of the material star eye-witnesses prove that the evidence brought on record by prosecution against the appellants is un-trustworthy and not inspiring confidence. Perusal of above referred evidence shows that these witnesses are not on same or one line with each other on very material and crucial points, which create doubt regarding authenticity of the prosecution evidence. It is well settled law that statements of eyewitness, which are in contradiction to each other and also self-contradictory have no evidentiary value. All this proves that the entire case is cooked-up at police station and proves of prosecution’s case as doubtful.

15. It is a well-settled principle of law that involvement of an accused in heinous nature of offence is not sufficient to convict him as the accused continues with presumption of innocence until found guilty at the end of the trial. All that may be necessary for the accused is to offer some explanation of the prosecution evidence against him and if this appearance to be reasonable even though not beyond doubt and to be consistent with the innocence of accused, he should be given the benefit of it. The proof of the case against accused must depend of its support not upon the absence or want of any explanation on the part of the accused but upon the positive and affirmative evidence of the guilt that is led by the prosecution to substantiate accusation. Here in this case, the prosecution has not been able to bring on record any convincing evidence. Rather, there are so many contradictions in the evidence of star witnesses [as discussed above] creating serious doubts in the prosecution case, which cut the roots of the prosecution case and according to golden principle of benefit of doubt one substantial doubt would be enough for acquittal of the accused. The rule of benefit of doubt is essentially a rule of prudence, which cannot be ignored while dispensing justice in accordance with law. Conviction must be based on unimpeachable evidence and certainty of guilt and any 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 person be convicted”, which occupied a pivotal place in the Islamic Law and is enforced strictly in view of the saying of the Holy Prophet (Peace Be Upon Him) that the “mistake of Qazi [Judge] in releasing a criminal is better than his mistake is punishing an innocent.”

16. As such, in presence of these irregularities and recklessness as discussed above in preceding paras, mere evidence of police witnesses (which is full of contradictions on very material and important points), cannot be relied upon and cannot be made basis for awarding conviction.

17. In the circumstances discussed above, we are of the considered view that the prosecution has failed to prove it’s case against appellants beyond any reasonable doubt and it is well settled principle of law that for creating shadow of doubt, it is not necessary that there should be many circumstances. If a single circumstances creates reasonable doubt in the prudent mind, then its benefit has to be given to the accused not as a matter of grace or concession, but as the matter of right. This dictum is laid down in the case of Tariq Pervez vs. The State (1995 SCMR 1345).

18. For the foregoing reasons, the conviction and sentence awarded by the learned trial Court to appellants is not sustainable. Consequently, the appeal in hands stands allowed. The conviction and sentence awarded to appellants vide impugned judgment dated 30.09.2023 passed by Special Judge, Anti-Terrorism Court, Shikarpur, is hereby set-aside. The appellants Sultan Ahmed, Jahangir Shah and Nadeem Ahmed are acquitted of the charges. The appellants are reported to be in jail; they shall be released forthwith, if not required in any other case.

Judge

Ansari