2018 PLP 21 (YLRN)

FAHIM AHMED SIDDIQUI, J.

The appellant was arrested in a case registered at Police Station Sita Road being Crime No. 48/2011 for assault at police party with deadly firearm weapons. He was prosecuted before the learned Assistant Sessions Judge, K.N. Shah for the offences punishable under sections 324, 353 and 34 P.P.C. After conclusion of trial, he was found guilty of the said offences, as such trial Court convicted and sentenced him for offence under Section 324 to suffer for rigorous imprisonment for a period of five years and to pay fine of Rs.20,000/- and also suffer rigorous imprisonment under Section 353 for a period of one year and to pay a fine of Rs.10,000/-.

2. The incident which gave rise to the case was occurred when police party of P.S. Sita Road left police station for the purpose of routine patrolling on 12.07.2011 at 19:30 hours. During patrolling, they received spy information that some lawbreakers were present near Kari Moree duly armed with deadly weapons in a Rickshaw. On such information, they moved ahead towards the reported place and reached near the said spot at 22:30 hours, they spied the said rickshaw. The felons started firing at police party which was retaliated and they were encircled and succeeded in apprehending one person who was driving the rickshaw while remaining succeeded in escaping from the scene of offence. The police recovered a plastic sack (Bachko), from which a 7 m.m rifle, two S.B.B.L guns and 10 live cartridges were recovered. The apprehended person disclosed his name as Rafique Ahmed son of Ghulam Nabi Panhwar, who could not produce the documents of rickshaw or licenses of recovered weapons. He also disclosed the names of escapees as Budhal Chandio, Mohram Solangi armed with Kalashnikovs, Ali Ahmed Rind and Zahid Chandio with guns. After completing necessary formalities on the spot, recovered case properties and accused were brought to police station where the above referred FIR was lodged on behalf of State.

3. After completion of investigation, the investigating officer submitted final report before the concerned Judicial Magistrate, who after completing initial formalities sent up the case to Sessions Court. The learned Sessions Judge entrusted the said case to learned Assistant Sessions Judge, Khairpur Nathan Shah for disposal according to law.

4. The learned trial Court supplied the case papers to the appellant/convict under receipt (Ex-1), thereafter charge was framed against the appellant/convict (Ex-3), to which he denied the allegations and claimed trial (Ex-5). The charge was amended after arrest of co-accused Zahid (Ex-7), to which he again denied the allegations of charge and claimed for trial (Ex-10). The prosecution examined PW/1 ASI Ali Gul (Ex-11) who produced memo of arrest and recovery (Ex-11/A) and memo of inspection of place of incident (Ex-11/B). The prosecution then examined complainant SHO Peer Allah Bachayo (Ex-12) who produced daily diary entry (Ex-12/A) and FIR (Ex-12/B). In the end, the prosecution examined ASI Aijaz Ali (Ex-13) who is the investigating officer of the case. The learned prosecutor then closed the prosecution side under his statement (Ex-14). Subsequently, the appellant/convict was examined under section 342, Cr.P.C. (EX-15). In his statement under Section 342 Cr.P.C, the appellant took plea that he was falsely implicated in the instant case by police and the recovered weapons were foisted upon him.

5. The case was tried and co-accused Ali Ahmed and Zahid were acquitted by trial Court and appellant was convicted with sentence of four (4) years vide judgment dated 08.4.2014. However, conviction and sentence were set-aide by the Appellate Court vide judgment dated 26.4.2014 with directions to proceed with the case afresh from the stage of cross-examination, as the appellant remained unrepresented during first trial. The case was proceeded accordingly and the appellant was again convicted as mentioned earlier, which was challenged in this appeal.

6. On the consideration of the evidence, the Court below found that the offences under sections 324 and 353 have been made out, the trial Court convicted and sentenced the accused as mentioned above. In this appeal, the appellant has challenged the conviction and sentence awarded to him by the trial Court.

7. Mr. Athar Abbas Solangi learned counsel appearing for the appellant assailed the impugned judgment on the ground of improper appreciation of evidence and misreading and non-reading of the available evidence. He pointed out that after a close analysis of the evidence, it would crystal clear that there has been enhancement and exaggeration in the evidence of both the important prosecution witnesses. He further submitted that the evidence of the investigating officer is also evasive and it appears that he has neither visited the alleged spot nor conducted investigation at all. According to him, the appellant is acquitted in the offshoot case as such the recovery itself becomes doubtful therefore happening of the instant incident is also questionable. Regarding recovery there are some conflicting views between complainant and witness. The recovered weapons were neither sealed and nor sent for the ballistic expert to verify whether the same was in working condition.

8. Mr. Sardar Ali Rizvi, learned A.P.G. supported the impugned judgment. According to him the role of accused is consistently described. At the time of arrest, he was armed with Kalashnikov and arrested on the spot. According to him, the prosecution proved the case, and he prayed for maintaining the sentence.

9. After having heard the learned counsel for the appellant and the learned Public Prosecutor and after precisely going through the record. I am of the view that the case against the appellant is highly doubtful and his conviction is not justifiable. The mode of recovery is dubious as the prosecution story is that the appellant has raised hands to surrender, but the witnesses say that the weapon was recovered from his hand. The witness says that the other weapons were recovered from plastic sack (Bachka) found in the rickshaw, but other complainant says that the said plastic sack (Bachka) was in the hands of appellant. Complainant says that the appellant did not stir and surrendered himself but the witness says he tried to escape and apprehended after following him. It is mentioned in FIR that there were 4 persons in the rickshaw but complainant says in his deposition that there were 5 persons. The witness says that the police party first saw the accused at a distance 100 paces while complainant says they saw accused at first instance from a distance of 15 to 20 paces. It has come on the record that the encounter was continued for about 15 minutes in which about 8 police personnel and 4 or 5 accused were involved and automatic weapons were used. Both witnesses say that both sides have no protection in shape of tree or wall at the place of incident. In such a situation, it is surprising that none from either side received injury and even no harm was caused to the police vehicle and rickshaw of accused. The complainant says that he went with investigation officer in a car owned by him, but it is surprising that he did not remember the colour of his car. Witness says that the accused was apprehended, and his hands were tied with the clothes of accused, but complainant says that the accused was handed over to ASI Ali Gul who controlled the accused with iron bars (chain).

10. In view of the above discussion, it is clear that the witnesses are not consistent regarding time consumed for proceeding at the spot. The weapon recovered from accused were neither sealed nor sent for the ballistic opinion about its mechanism and working condition. It is also worth mentioning that allegedly recovered weapons were not produced with the proper description as specific articles number, this aspect of the case also creates doubt.

11. It is alleged that certain weapons were recovered from the spot and a Kalashnikov was in the hands of appellant for which separate case was registered being FIR No.49/2011. Out of the said FIR, a criminal case was proceeded against the appellant before learned Judicial Magistrate-I. K.N. Shah under Section 13(d) Arms Ordinance. In the said case, the same set of witnesses were examined and after the trial the appellant/ accused was acquitted. The learned counsel for the appellant supplied the certified copy of the judgment dated 25.03.2016 of the said criminal case. I have perused the said judgment. It is revealed from the said judgment that after going through the prosecution evidence, the learned Judicial Magistrate came to the conclusion that the prosecution could not prove the case against the appellant and he was acquitted from the charge. When the recovery of weapons, including Kalashnikov allegedly used by appellant, are not established; the whole of the prosecution story becomes unconvincing to a prudent mind.

12. In this position of affairs, it can be said that there are so many frailties in the prosecution case, which makes the prosecution story extremely dubious. It is a settled principle that the benefit of doubt should be extended in favour of accused. I fortify my view, from a case of the Honourable Supreme Court reported as Ghulam Qadir v. State (2008 SCMR 1221), wherein it is held as: "It needs no reiteration that for the, purpose of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge-makers the whole case doubtful. Merely because the burden is on the accused to prove his innocence it does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt and this duty does not change or vary in the case. A finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. Mere conjectures and probabilities cannot take the place of proof Muhammad Luqman v. The State PLD 1970 SC 10."

13. The upshot of the above discussion is that the case against the appellant is not free from doubt, hence the instant appeal was allowed by short order on 11.04.2017, whereby the appellant was acquitted from the charge and impugned judgment dated 26.8.2015 was set aside and these are the reasons for the same. JK/R-11/Sindh Appeal allowed.