IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Appeal No..S-76 of 2024.
Appellant : Gulzar Ahmed Menik, through M/s Safdar Ali
Bhutto & Mushtaque Ali Langah, Advocates.
Respondent : The State, through Mr. Ali Anwar Kandhro,
Additional Prosecution General.
Date of hearing : 26.09.2024
Date of Judgment : 26-09-2024
J U D G M E N T.
KHADIM HUSSAIN SOOMRO, J.-Through the instant appeal, the appellant has called in question the judgment dated 25.07.2024 (impugned judgment)penned down by learned Additional Sessions Judge-II, Kandhkot, in Sessions Case No.29/2024 (re: The State Vs. Gulzar Ahmed Menik). This case is an outcome of Crime No.40/2024, registered at P.S A-Section, Kandhkot, for an offence under Section 23(i)(a)& 25, Sindh Arms Act, 2013. After recording evidence and determination of points, the trial Court convicted and sentenced the appellant to undergo R.I. for 10 years and pay afine of Rs.200,000/-. In case of default, the appellant was directed to undergo S.I. for two years more. However, the benefit of Section 382-B, Cr.P.C was extended to the appellant/convict.
2. According to the case of prosecution, on 16.02.2024, H.C./2462 Abdul Sattar Sabzoi, accompanied by his subordinate police personnel including P.C./1856 Muhammad Tayab, all being duly armed and in police uniform while patrolling came across an encounter with 08 armed gangsters including present accused at 1900 hours (7:00 pm) beside Shaloomoar (curve) (a road leading from Haibat to Guddu bridge/pull) and ultimately Police Party arrested two accused, namely, Gulzar Ahmed and Ajmal and also secured unlicensed crime weapons viz. 02 pistols with magazines containing live bullets (a pistol of 30 bores with a magazine containing 03 live bullets from the present accused) followed by sealing thereof and writing of memo on the spot and finally F.I.R. of the main case and offshoot crimes were lodged against them including present F.I.R. against the present accused.
3. A formal charge was framed against the accused, to which he pleaded 'not guilty' and claimed to be tried.
4. In order to prove its case, the prosecution examined and relied upon the evidence of all five witnesses, i.e. PW-1 complainant HC Abdul Sattar, PW-2 mashir PC Muhammad Tayab, PW-3 IO/ASI Abdul Faheem Sarki, PW-4 incharge Malkhana W.H.C. Khalid Hussain and PW-5 dispatch official. They exhibited several documents in their evidence.
5. In his statement u/s 342, Cr.P.C,the appellant/accused denied the prosecution case and claimed to be innocent. However, neither did he examine himself on oath nor produced any witness in his defence.
6. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, the trial Court vide impugned judgment convicted and sentenced the appellant / accused, as stated above. Against the said judgment, the appellant has preferred instant appeal.
7. Learned counsels for the appellantsubmitted that the offensive weapon was foisted against the appellant by the police with an intention to strengthen the main case based on Crime No.39/2024, PS A-Section Kandhkot, u/s 324, 353, 148, 149, P.P.C. of the same police station; however, the appellant has been acquitted in the said main case; therefore, this being offshoot case, the appellant is entitled to be acquitted in this case as well.
8. Learned Addl Prosecutor General Sindh, supporting the impugned judgment, submits that the appellant was apprehended red-handed after an encounter, the offensive weapon was recovered from him, and the P.W.s have fully supported the prosecution case at trial;therefore, the learned trial Court has rightly convicted him. However, he is unable to controvert the fact that the appellant has been acquitted in the main case.
9. I have heard learned Counsels for the appellant as well as learned Addl. P.G.is appearing for the State and hasperused the material available on the record.
10. It is the prosecution case that the police apprehended the appellant after an encounter, and the offensive weapon was also recovered from his possession; however, the evidence of the prosecution witnesses to that effect has been disbelieved in the main case based on Crime No.39/2024, PS A-Section Kandhkot, u/s 324, 353, 148, 149, P.P.C. of same police station, mainly on the grounds that despite cross firing for about 08 minutes between the culprits and the police, nobody from either side sustained any injury or even a scratch and any bullet did not even hit the police mobile van. Moreover,both the mashir of recovery and arrest are police officials and subordinate to the complainant; hence, the testimony of such interested witnesses cannot be believed as gospel truth in the absence of any other independent evidence, which is lacking in this case. The P.Ws have contradicted each other in their evidence on material points, wherein PW-1/Complainant HC Abdul Sattar, in the 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 resident of different places of Punjab and Sindh provinces, without disclosing the source of identifying the accused with their full names. 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.
11. 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.
12. It is an admitted fact on record that the instant case based on crime No.40/2024 is the offshoot of main cases Crime No.39/2024 registered at PS A-Section, Kandhkot, u/s 324, 353, 148, 149, P.P.C.(vide Sessions Case No.36/2024). The appellant has been acquitted of the charge of said main case. When the appellant has been acquitted by way of judgment in the main case of police encounter by disbelieving the evidence, the same set of witnesses being the recovery officer, mashir and the investigation officer; hence, the propriety of law demands the appellant should also be acquitted from the charge of the instant case. In this connection, reference may be made to the case of Yasir Chaudhry Vs. The State reported in 2012 MLD 1315, wherein it was held by the Lahore High Court as under:-
"In the case reported as Manjhi v. The State (PLD 1996 Karachi 345) it has been held that when the accused has been acquitted in the main case, he would become entitled to acquittal in a case which is offshoot of the said case. Same is the position here, as the present lis is an offshoot of the main murder case, so, respectfully following the dictum laid down in the judgment supra, this petition is allowed and the application of the petitioner under section 249-A Cr. P.C. is accepted and the petitioner is acquitted from the charge in case F.I.R. No.17 of 2003 dated 12.1.2003 registered under section 7 of the Surrender of Illicit Arms Act No.XXI of 1991 with Police Station Civil Lines, Bahawalpur."
13. Keeping in view the above legal position, it can safely be held that the accused / appellant deserveshis acquittal in this offshoot case as well.
14. For what has been discussed above, instant Criminal Appeal is allowed, the impugned judgment dated 25.07.2024, handed down by learned Additional Sessions Judge-II, Kandhkot in Sessions Case No.29 of 2024 (re:The State Vs. Gulzar Ahmed Menik), being an outcome of F.I.R. No.40/2024 registered at Police Station A-Section, Kandhkot, is set aside and the appellant is acquitted of the charge.The appellant shall be released forthwith if custody is not required in any other case.
15. Above are the reasons for my short order dated 26.9.2024 passed in open Court, whereby instant appeal was allowed as above.
Judge
M Yousuf P/**