IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Appeal No. S- 62 of 2024.
Appellant : Mehboob @Mir Bahalkani through Mr. Rafique Ahmed K. Abro, Advocate.
Respondent : The State, through Mr. Ali Anwar Kandhro, Additional Prosecution General.
Date of hearing: 03-09-2024
Date of Judgment: 03-09-2024
J U D G M E N T.
KHADIM HUSSAIN SOOMRO, J- By means of instant Crl. Appeal, the appellant has assailed the Judgment dated 25.07.2024, passed by learned Additional Sessions Judge-II, Kandhkot, in Session Case No.36/2024, being an outcome of F.I.R. No.39/2024, for the offence under Sections 324, 353, 148, 149 P.P.C, registered at P.S. A-Section, Kandhkot. After a dressed trial, the appellant was convicted of the sentence as under-
1. For an offence punishable U/S 324 PPC R/W Section 149 P.P.C, he was sentenced with R.I for 10 years and to pay a fine of Rs.1,00,000/-, in case of failure to pay the fine, the convict at fault will undergo S.1 for 02 years more.
2. For an offence punishable U/S 353 PPC R/W Section 149 P.P.C, he was sentenced to R.1 for 02 years and to pay a fine of Rs.1,00,00/-. In case of failure to pay fine, the convict at fault will undergo S.1 for 06 months more.
3. For an offence punishable U/S 148 PPC R/W Section 149 P.P.C, he was sentenced to R.1 for 03 years and to pay a fine of Rs.2.00.00/-. In case of failure to pay a fine, the convict at fault will undergo S.I for 06 months more.
The benefit of Section 382-8 Cr.P.C stands extended to the appellant for the period he remained inside the prison during the trial as per law. All sentences awarded will run concurrently.
2. Succinctly, the prosecution case against the present appellant is that on 16-02-2024, the police party led by complainant HC Abdul Sattar was on patrol duty. After patrolling through various places, when at 1900 hours, arrived beside Shaloolaro (curve) at a road leading from Haibat to Guddu bridge; eight accused persons duly armed with K.Ks, T.T pistols and a gun, including the present accused/appellant armed with K.K, emerged on the road whom complainant/police party asked their identity, on which all accused started indiscriminate firing at them. The Police party also retaliated in their self-defence, and the encounter lasted for 8 minutes; the police party succeeded in apprehending two accused, namely Gulzar Ahmed Menik & Ajmal Menik and recovered un-licensed Pistols of 30 bore with magazines and live bullets from them, other co-accused made their escape good. Later, the recovered crime weapons were sealed, and the memo of arrest and recovery was prepared in the presence of Mashir, each of whom was PC Muhammad Tayab and PC Muhammad Asad. The police registered three (3) F.I.R.s, including F.I.R. Crime No.39/2024 of main case, F.I.R. Crime No. 40/2024 & 41/2024 being offshoot cases against them at P.S. "A' Section, Kandhkot.
3. During the course of the investigation, the appellant herein was apprehended. Following the conclusion of the investigation, a 173 CrPC report was submitted against all the accused in custody, including the present appellant, while showing other absconding accused.
4. A formal charge against the accused was framed in terms of Section 265-D Cr.P.C on 18.4.2024 at Exh:5, to which they did not plead guilty and claimed to be tried vide pleas at Exh:5/A to 5/E in terms of Section 265-E Cr.P.C. Meanwhile, co-accused Ajmal and Waheed jumped out of bail; thus, their case was bifurcated for separate proceedings, and the trial Court, with the consent of counsel for the accused, proceeded with the case for expeditious trial.
5. The prosecution, during the trial, examined complainant cum author of F.I.R. HC Abdul Sattar (PW-1) at Ex. 06, Eye witness cum Mashir PC Muhammad Tayab PW-2 at Ex. 07, I.O A.S.I. Abdul Faheem Sarki PW-3 was examined at Ex:08, I/C Malkhana W.H.C. Khalid Hussain PW-4 was examined at Ex. 09, and Dispatch official PC PW-5 was examined at Ex. 10. After that the learned ADPP for the State closed prosecution side vide his statement at Exh:11.
6. Statements of two other co-accused were recorded under Section 342 Cr.P.C exhibited at Ex:12 & 13 in their hearing through a video link as well as in due presence and hearing of their counsel in open Court, and the statement of present appellant Mehboob@Mir Bahalkani was recorded at Ex:14 under Section 342 Cr. P.C. in which denied the prosecution case and claimed false implication. According to him, police arrested him bare-handed and then booked him in false cases. However, the accused did not lead evidence in defence and declined to give evidence on oath to disprove prosecution allegations. Thereafter, the trial Court, after hearing, learned counsel for the parties, convicted and sentenced the appellant and other co-accused under impugned Judgment, hence this appeal.
7. Learned counsel for the appellant mainly contended that appellant is innocent and he has been falsely implicated by the police and no such incident has ever taken place as appellant was arrested by the police empty handed and thereafter false prosecution story was cooked up; that the F.I.R. was lodged with the delay of 2 hours for which no plausible explanation was furnished by the prosecution; that all the prosecution witnesses are police officials and subordinate of complainant therefore, they are highly interested and partisan; that no specific role is attributed to any accused including the present appellant; that allegedly the eight accused duly armed with K.Ks fired upon police party which was retaliated by police party and such encounter lasted for 8 minutes but none from either side received a single injury nor any bullet was hit to police mobile; that although all accused were allegedly armed with K.Ks; that only two co-accused were apprehended as claimed by the police and rest had made their escape which is flimsy and unbelievable; that source of identification is said to be search light of police mobile which is weak type of source, as on spur of moment it was highly improbable to identify seven accused with their names and parentage; that there are significant contradictions in the evidence of prosecution witnesses which casted serious doubt into the prosecution case and the evidence adduced by the prosecution has not been adequately assessed and evaluated by the trial Court and the same was insufficient to warrant conviction of the appellant. On all these submissions, learned counsel for the appellant urged that the prosecution has failed to bring home the guilt of the accused beyond a shadow of reasonable doubt; the impugned Judgment of the trial Court is liable to be set aside, and the appellant is entitled to acquittal on the benefit of the doubt.
8. Learned Addl. P.G., appearing for the State, contended that the appellant was nominated in the F.I.R. with the role of causing straight firing upon the police party along with the other seven accused armed with K.Ks, T.T. Pistols, and a gun, which deterred them from discharging their official duty. The prosecution witnesses have supported the complainant's version. Hence, the impugned Judgment does not call for any interference by this Court, and the instant appeal is liable to be dismissed.
9. I have heard the learned advocate for the appellant, Addl. P.G. for the State and perused the material brought on record.
10. The role attributed to the present appellant Mehboob@ Mir in the commission of a crime is that he duly armed with K.K along with seven others duly armed with K.Ks, T.T Pistols and a gun committed ineffective firing upon the police party. Allegedly, the encounter between the accused and the police party lasted about 8 minutes, but neither side received a single injury. Even the police mobile was not hit by any bullet. It is also noted that the manner in which the police party claimed to have apprehended two accused at the spot without anybody being hurt from either side despite both eye witnesses stating in their cross-examinations that the encounter took place at a distance of only 40 to 50 paces which is highly improbable and does not appeal to a prudent mind. Besides, the source of identification is said to be the searchlight of a police vehicle on which they claimed to have identified seven accused with their names and addresses, out of whom one set of accused is to be resident of Sadiqabad, Punjab Province, while the rest of accused were from difference place of residence in Province of Sindh; therefore, it is highly improbable to believe that on spur of moment accused hailing from difference places of residence could be identified at the spot. Both the eyewitnesses and mashirs of recovery and arrest are police officials and subordinate to the complainant; hence, the testimony of such interested witnesses can not be believed as gospel truth in the absence of any other independent evidence, which is lacking in this case. All these factors jointly create serious doubt about the veracity of the prosecution case against the present appellant.
11. As far as contradictions between the statements of P.Ws in their evidence recorded by the trial Court are concerned, it reflects that PW-1/Complainant HC Abdul Sattar, in his F.I.R., as well as examination in chief, initially stated that the moment he saw the accused on searchlight of police mobile, he identified the accused with their names and address despite all the accused are said to be residents of different places of Punjab and Sindh provinces. The complainant did not disclose how he could identify the accused with their full name. Whether the accused were previously known to him, it was noted that upon apprehending two accused, their names and addresses were inquired and disclosed. However, the First Information Report (F.I.R.) and the testimonies of the eyewitnesses do not indicate whether the apprehended accused were questioned about the names and addresses of other accused individuals, including the present appellant.
12. It is also a fundamental principle of jurisprudence; there doesn't need to be numerous infirmities to disbelieve a witness. If there is one which impeaches the credibility of the witness, that may make the entire statement doubtful. It isa settled principle that 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. Reliance in this regard is placed on the case Muhammad Khan and another v. The State, 1999 SCMR 1220.
13. Similarly, in the case reported as Tariq Parvez v. The State (1995 SCMR 1345), the honourable Apex court held as under:
"The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him the benefit of the doubt, it is not necessary that there should be many circumstances creating doubts. If a circumstance 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."
14. For the above-stated reasons, I have come to the conclusion that the prosecution has failed to bring home the guilt of the accused/appellant beyond a shadow of reasonable doubt. Therefore, this appeal is allowed, the conviction and sentence awarded to the appellant vide Judgment dated 25.7.2024 passed by the learned 2nd Additional Session Judge, Kandhkot, is set aside, and he is acquitted of the charge. Appellant shall be released forthwith if not required in any other custody case.
15. Above are the reasons for my short order dated 03.9.2024 passed in open Court, whereby instant appeal was allowed as above.
JUDGE
Shabir