2020 P Cr (PLP)

ABDUL MAALIK GADDI, J.

By this common judgment, I intend to dispose of the above-cited criminal appeals, as they arise out of same incident, involving common question of law and facts as well as having been delivered by the same learned trial Court on same date i.e. 27.08.2018.

2. Through these criminal appeals, the appellant named above has assailed the legality and propriety of the judgments dated 27.08.2018 passed by the learned VIII-Additional Sessions Judge, Hyderabad in Sessions Case No.677/2017 (re: State v. Jawaid) arising out of Crime No.69/2017, PS: Hatri, under sections 324, 504, 337-A(i), 337-F(vi), P.P.C. and Sessions Case No.678/2017 (re: State v. Jawaid) arising out of Crime No.73/2017 of Police Station Hatri, under sections 23(1)(a) of Sindh Arms Act, 2013, whereby the learned trial Court after full dressed trial, convicted and sentenced the appellant as mentioned in the concluding para of the respective judgments (impugned herein), which read as under:-

1. In Criminal Appeal No.S-19012018 (Sessions Case No.677 of 2017) the accused/appellant was convicted and sentenced as under:- In view of my discussion on point No.1, the case is proved against accused Jawaid son of Muhammad lqbal Chandio, beyond any shadow of reasonable doubt for offence punishable under section 337-F(vi), P.P.C., therefore, he is convicted in exercise of powers conferred by section 265-H(2), Cr.P.C. for causing hurt in the nature of "Ghayr Jaifah Munaqillah" and sentenced to suffer rigorous imprisonment for five years as ta'zir and to pay Daman to the tune of Rs.50,000/- (Rupees Fifty Thousand) to injured P.W-2 Khalid Hussain. The accused shall be entitled to benefit under section 382-B, Cr.P.C."

2. In Criminal Appeal No. S-189/2018 (Sessions Case No.678/2017), the accused/appellant was convicted and sentenced as under:- In view of my discussion on point No.1, the case is proved against accused Jawaid son of Muhammad Iqbal Chandio, beyond any shadow of reasonable doubt for offence punishable under section 23(1)(a) of Sindh Arms Act, 2013, therefore, he is convicted in exercise of powers conferred by section 265-H(2), Cr.P.C. for keeping an unlicensed weapon along with magazine having four live bullets and sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs.10,000/- (Rupees Ten Thousand). In default of payment of fine, accused shall suffer simple imprisonment for two (02) months more. The accused shall be entitled to benefit under section 382-B, Cr.P.C."

3. The facts of FIR. No.69/2017, under sections 324, 504, 337-A(i), 337 F(vi), P.P.C. (in Cr. Appeal No. S-190 of 2018), are that complainant Shahid Hussain son of Muhammad Nawaz Selro lodged FIR on 24.08.2017 at 2200 hours, with regard to an incident taken place on 21.08.2017 at 2345 hours, stating therein that he has a Mobile Phone Shop at Subhanallah Colony, adjacent to his shop there is Estate Agency of his brother Khalid Hussain Selro and MNS Motor Show Room. On 21.08.2017, in nighttime, he along with his brother and his friend namely Momin Ali son of Wali Muhammad presently resident of Malik Nagar, Hala Naka, Hyderabad were sitting in front of the Estate Agency of his brother Khalid Hussain and MNS Show Room and at about 11:45 p.m. 03-persons on one Black Colour Unique Motorcycle without number came, from them one was Jawaid son of Muhammad Iqbal Chandio resident of Village Mulla Farash near Isra University Hyderabad and two were unknown persons. Jawaid Chandio came towards them and started abusing, to whom they prohibited, whereupon he took out his pistol and hit its butt at the head of Momih Ali Brohi and opened straight fires at Khalid Hussain with intention to kill and the fire hit on his right thigh, who became injured and fell down on the ground, thereafter, they raised cries on which the accused persons ran away towards Isra University. Thereafter, injured were brought at Civil Hospital Hyderabad, where they were admitted and Momin after getting first aid treatment got the letter from PS, while they were remained busy in treatment of his brother Khalid Hussain. On 22.08.2017, the injured Khalid Hussain brother of complainant was referred to Bone Care Hospital, Hirabad, Hyderabad, from Civil Hospital, Hyderabad and was admitted. Thereafter, complainant appeared at police station and lodged the FIR inter alia on the above facts.

4. The facts of FIR No.73/2017, under section 23(1)(a) of Sindh Arms Act, 2013 (in Cr. Appeal No. S-189 of 2018), are that on 10.09.2017 at about 1700 hours a police party of PS: Hatri, Hyderabad headed by ASI/complainant Muhammad Younis arrested accused Jawaid from Chang Curve/Mor near bypass in Crime No.69/2017, under sections 324, 504, 337- A(i), F(v), 34, P.P.C. of Police Station Hatri and from his possession one TT-Pistol of .30-Bore with magazine containing 04-live bullets of 30-bore in working condition was secured in presence of mashirs and on demand the accused failed to produce the license for pistol and bullets, hence was arrested and FIR was lodged.

5. On conclusion of the investigation, challans in the aforesaid FIRs were submitted against the accused/appellant.

6. At trial, learned trial court framed charge(s) against the accused/appellant in both cases and then prosecution to prove the aforementioned cases examined its witnesses and closed its side vide its respective statements.

7. Thereafter, statements of accused/appellant were recorded under section 342, Cr.P.C., in which he has denied the prosecution allegations and claimed his false implication in the crime; however, neither he examined himself on oath nor led any evidence in defense.

8. Learned trial Court after hearing the learned counsel for the parties and examining the evidence available on record, convicted and sentenced the accused/appellant as stated above. Hence these appeals.

9. Learned trial court in the impugned judgments has already discussed the evidence led by the prosecution in both cases, in detail and there is no need to repeat the same here, so as to avoid duplication and unnecessary repetition.

10. Learned advocate for appellant has contended that both the cases registered against the appellant are false and have been registered due to enmity; that the cases are highly doubtful; that no incident as alleged in the FIRs has taken place; that the impugned judgments are against the law, equity and natural norms of justice, as such are not sustainable in law; that the impugned judgments were passed on the basis of surmises, conjectures and against the principles of criminal justice; that all the prosecution witnesses are interested; that while recording the evidence all prosecution witnesses have made contradictory statements, which have not been considered by the trial Court while delivering the impugned judgments. While referring the prosecution evidence, he has contended that complainant (PW 1) in his evidence has deposed that he along with his brother Khalid were present in his mobile shop situated near M.N.S Estate Agency Hala Naka, near Isra University Subhanallah Colony, Hyderabad, whereas PW-2 injured has deposed that he and Momin were present in his Estate Agency situated at Subhanallah Colony and they were outside the Estate agency. Complainant deposed that he was in front of his brother Khalid at the time of firing, whereas injured deposed that his brother Shahid (complainant) was 15-feet away from him at the time of firing and he has admitted that at the time of firing his brother Shahid was not stood with him and came after the firing. The complainant has deposed that one bullet was hit in right leg of his brother Khalid, whereas injured Khalid deposed that one bullet was hit on his right thigh on the upper side. He further argued that deposition of mashir of arrest and recovery, place of incident and inspection of injuries is silent regarding arrest and recovery of accused and has not supported the prosecution version as setup in mashirnama of arrest and Recovery, place of incident and inspection of injuries of injured and in his cross-examination he has admitted that police obtained his signatures on all the mashirnamas at police station and in his cross-examination has deposed that the empties were with Malik Hussain the brother of injured wrapped in a paper and same were given by him to police, whereas ASI/Investigation Officer deposed that empties were lying at the distance of about 07/08 feet from shop. The complainant deposed that he went to police station along with his brother Malik Hussain and with some neighbours for lodgment of FIR, whereas Investigation Officer deposed that complainant came at police station along with Shahid Hussain, Zakir Hussain and Shoban. At last he argued that above material contradictions and discrepancies create serious doubt and benefit of doubt always goes in favour of accused; therefore, while extending benefit of such doubt the appellant/accused is entitled for his acquitted in both aforementioned cases.

11. On the other hand, learned APG duly assisted by the learned counsel for the complainant Shahid Hussain, while supporting the impugned judgments contended that the prosecution has fully established its case against the appellant beyond reasonable doubt by producing consistent/convincing and reliable evidence and the contradictions whatever on record are of minor in nature and are not fatal to the prosecution case; that through medical evidence as brought on record prosecution has been able to establish that the injured has sustained bullet injury on his leg, which cannot be self inflicted and the eye-witnesses have fully supported the prosecution case; that the pistol of 30-bore used in Crime No.69/2017 was secured from the appellant, which was also sent to the FSL, from where positive report received and produced in evidence. Learned counsel for the complainant relied upon case law reported in 2006 SCMR 1857, PLD 2018 Lahore 139, 2008 YLR 316, 2017 SCMR 283 and 2007 SCMR 1639.

12. I have heard the learned counsel for the parties and perused the evidence and documents as available on record.

13. After careful consideration and meticulous examination of the available record, suffice to say that mere heinous nature of the offence is not sufficient to convict the accused because the accused continues with presumption of innocence until found otherwise at the end of the trial. It is the settled principle of law that burden of proof of allegation is always upon the prosecution to prove the case beyond shadow of doubt. Keeping in view the basic touch stone of criminal administration of justice, I have examined the ocular evidence as well as circumstantial and documentary evidence along with impugned judgments and come to the conclusion that prosecution has failed to prove both the captioned cases against the appellant for the reasons that the evidence of the eye-examined so brought on record by the prosecution is not only contradictory with each other on material particulars of the case but on perusal, the same is also not inspiring confidence, For example: PW.1 complainant Shahid Hussain in his evidence has deposed that at the time of incident he along with his brother Khalid (injured) was present in his mobile shop situated at M.N.S. Estate Agency Hala Naka, near Isra University Subhanallah Colony, Hyderabad, whereas PW-2 injured Khalid has deposed that at the relevant time he and one Momin were present in his Estate Agency situated at Subhanallah Colony and they were outside the Estate agency; that complainant deposed that he was in front of his brother Khalid at the time of firing, whereas injured deposed that his brother Shahid (complainant) was 15 feet away from him at the time of firing and he has admitted that at the time of firing his brother Shahid was not stood with him and came after the firing; that the complainant has deposed that one bullet was hit in right leg of his brother Khalid, whereas injured Khalid deposed that one bullet was hit on his right thigh on the upper side; that while recording his evidence, P.W. Abdul Waheed, who is mashir of arrest of appellant Jawaid as well as recovery of TT Pistol allegedly effected from the said appellant, in his evidence at one place has stated that the accused present in Court is not same, soon after this line, he improved his statement by saying that the accused present in Court is same; that deposition of mashir of arrest recovery, place of incident and inspection of injuries is silent regarding arrest of appellant as well as recovery of TT pistol and has not supported the prosecution version as setup in mashirnama of arrest and recovery, place of incident and inspection of injuries of injured and in his cross-examination the said mashir namely Abdul Waheed at one place has stated that he signed the mashirnamas outside the house of injured Khalid, whereas at another place he stated that police obtained his signatures on all the mashirnamas at police station; in his cross-examination the said mashir has also stated that the empties were available with one Malik Hussain the brother of injured, wrapped in a paper and same were given by him to police, whereas ASI/Investigation Officer deposed that empties were lying on the ground at the distance of about 07/08 feet from shop; that the complainant deposed that he went to police station along with his brother Malik Hussain and with some neighbours for lodging of FIR, whereas Investigation Officer deposed that complainant came at police station along with Shahid Hussain, Zakir Hussain and Shoban; all these material contradictions and discrepancies create serious doubt in the prosecution case and benefit of which is to be extended in favour of the appellant.

14. It is also pertinent to mention here that as per prosecution case at the time of incident one Momin was available with injured Khalid and also received some injury at the hands of accused persons, but said Momin, who was surely a good witness of the prosecution in order to prove its case against the appellant, neither examined by the prosecution nor any medical certificate with regard to his examination and treatment has been brought on record; therefore, presumably the said Momin was not available at the occurrence and if he would have been examined he did not support the prosecution case.

15. It is matter of record that during the alleged incident complainant had suffered only one bullet injury on non-vital part (right leg) of his body. Admittedly, at the time of alleged incident appellant along with two unknown accused persons duly armed with weapons having intention to cause murder of the complainant/injured came at the place of incident and complainant/injured were empty handed so also at the mercy of the appellant, even then, appellant only allegedly caused one bullet injury to the injured on his non-vital part. This aspect leads to a presumption that if appellant had any intention to commit the murder of the complainant/injured, he would have repeated the fire shot. Keeping in view the peculiar facts and circumstances of the case in hand, it appears that section 324, P.P.C. is not made out against the appellant in this case.

16. Here in this case another crucial point which requires to be discussed is that the alleged incident took placed on 21.08.2017, the injured Khalid was referred to hospital on same day and as per prosecution assertion, he was discharged from the said hospital on 22.08.2017, but the FIR, of the incident was lodged on 24.08.2017 with an inordinate delay of 04 days from the date of occurrence as well as after two days of the discharge of appellant from the hospital, which has not been plausibly explained by the prosecution. Therefore, keeping in view of this aspect of the case, false implication of the appellant in this case with due deliberation and consultation could not be ruled out.

17. As regards the recovery of the crime weapon i.e. .30-Bore TT pistol is concerned, as per prosecution case it was made on 10.09.2017. P.W. Abdul Waheed, who is mashir of arrest and recovery, did not made any specific statement in respect of such recovery. Further as per record, the pistol was sent to Ballistic Expert for report with a delay of about one month; neither the incharge of the Malkhana was examined nor a plausible explanation has been furnished by the prosecution whether durirg such period the alleged crime weapon was kept in safe custody; as well the PC Manzoor Hussain who has taken the property to Ballistic Expert for report has not been examined, therefore, the recovery has not been established in the fashion as alleged.

18. So as the registration of other criminal cases against the appellant is concerned, needless to say that mere registration of criminal case(s) against accused is not sufficient to declare him as habitual offender unless it is proved that he has been convicted in any other said cases and that conviction has been upheld by the Superior Courts. During the course of arguments, I have specifically asked the question from learned counsel for the complainant whether the appellant has been convicted in any other criminal case, he has replied in negative.

19. I have perused the case law cited by the learned counsel for the appellant. In my humble view, the facts and circumstances of those cases are quite distinguishable hence do not apply in the facts and circumstances of the case in hand.

20. In view of the above, I hold that in these cases the prosecution has miserably failed to prove its case against the appellant beyond any reasonable shadow of doubt and as a result thereof, the appellant Jawaid is entitled to the benefit of doubt as a right and not as a concession. It is also settled law that if a slightest doubt arises in the case of prosecution, then it is sufficient to discard the entire prosecution evidence and its benefit should be extended in favour of the accused not as a matter of grace or concession but as a matter of right. In this context, reference can be made to the case Tariq Pervez v. The State (1995 SCMR 1345), wherein it was observed that; "The concept of benefit of doubt to an accused persons is deep-rooted in our country for giving him benefit of doubt, 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 the accused will be entitled to the benefit not as a matter of grace and concussion but as a matter of right".

21. For what has been discussed above, the case in hand is full of material contradictions and lacunas and the prosecution has failed to prove its case against the appellant beyond any reasonable shadow of doubt and as a result thereof appellant Jawaid is entitled for his acquittal. Consequently, the captioned appeals are allowed, the impugned judgments dated 27.08.2018, passed by the learned VIII-Additional Sessions Judge, Hyderabad, are set-aside and the appellant is acquitted of the charge. The appellant is in custody; he shall be released forth with if not required in any other custody case.

22. By short order dated 02.11.2018, after hearing the learned parties counsel, the instant appeals were allowed and the impugned judgments dated 27.08.2018, passed by the learned VIII-Additional Sessions Judge, Hyderabad in the Sessions Case Nos.677 and 678 of 2017 were set aside and the appellant Jawaid son of Muhammad Iqbal Chandio was acquitted of the charge and these are the reasons of the same. JK/J-12/Sindh Appeals allowed.