2020 P Cr (PLP)

MUHAMMAD SALEEM JESSAR, J.

Through this Criminal Appeal appellant Wazeer son of Adam has assailed judgment dated 19.03.2012 handed down by learned Sessions Judge, Dadu in Sessions Case No.285 of 2011 (re: The State v. Wazeer and others) being outcome of FIR No.187/2011 registered at P.S. 'A' Section Dadu, whereby the accused/appellant Wazeer has been convicted for offence punishable under sections 412 and 353, P.P.C. and sentenced to suffer R.I. for four (4) years and to pay fine of Rs.25,000/- and in default to undergo S.I. for two (2) months more. However, he has been extended benefit of section 382-B, Cr.P.C. By the same judgment, co-accused namely, Abdul Ghaffar and Ameer have been acquitted of the charges while extending them benefit of doubt.

2. Succinctly, the facts of the prosecution case, as disclosed by complainant ASI Ghulam Sarwar in aforementioned FIR, are; that he is posted as ASI at P.S Dadu. On 23.4.2011 he along with his subordinate staff PC Qurban and PC Nasrullah left police station in police mobile along with driver HC Ghulam Muhammad for patrolling vide entry No.20 at 1800 hours. While patrolling when they reached at Anti-Corruption Morr, Dadu, they saw that two persons on one motor cycle and one person on another motor cycle were coming from Dadu town in high speed, hence the police chased them. On seeing police party while chasing, the accused started firing at them with intention to commit their Qatl-i-amd murder, whereupon the police in retaliation also fired at the accused due to which one person along with his motorcycle fell down on the ground while two accused succeeded to run away on their motor cycle; however, they were identified to be Abdul Ghaffar son of Ghulam Muhammad and Ameer son of Hussain, both by caste Khushik. Then, police caught hold of one person who had fallen down on the ground along with his pistol. On inquiry, he disclosed his name to be present appellant. He also disclosed that said motorcycle was robbed by them from Karimabad Colony area. On personal search, three master keys were recovered from him. Such Mashirnama of arrest and recovery was prepared in presence of police mashirs and then arrested accused and recovered property were brought at police station, where FIR was registered on behalf of the State, as stated above.

3. After completion of usual investigation, challan was submitted against the accused before the concerned court. A formal charge was framed against the accused on 02.06.2011 vide Ex-2, to which they pleaded not guilty and claimed to be tried vide their respective Pleas Exs.3 to 5.

4. In order to prove charge against the accused, prosecution examined complainant ASI Ghulam Sarwar at Ex.6, who produced mashirnama of arrest and recovery and FIR as Ex.6-A and 6-B respectively. P.W. PC Qurban Ali was examined at Ex.7, who produced copy of mashimama of place of incident. P.W. ASI, Muhammad Umar, I.O. of the case, was examined at Ex.8. Thereafter, D.P.P. appearing for the State closed prosecution side by his Statement Ex.9.

5. Statements of accused under section 342, Cr.P.C. were recorded vide Ex. 10 to 12, in which they denied the allegations of prosecution levelled against him and stated that they are innocent and have been falsely implicated in the case. They further stated that allegedly recovered property and weapon have been foisted upon them and they prayed for justice. However, neither they examined themselves on oath as provided under section 340(2), Cr.P.C. nor produced any witness in their defence.

6. After formulating the points for determination, recording evidence of prosecution witnesses and hearing counsel for the parties, learned trial Court vide impugned judgment convicted and sentenced the accused / appellant only, as stated above. Against the said judgment instant appeal has been preferred by the convicted accused/ the appellant.

7. I have heard the appellant, who was present in person on bail, as well as learned A.P.G. appearing for the State and perused the material available on the record.

8. Appellant present in person submitted that he has been falsely involved in the present case. According to him, on the same set of evidence co-accused Abdul Ghaffar and Ameer have been acquitted while believing same set of evidence against him, he has been convicted. He submitted that the impugned judgment suffers from misreading and non-reading of evidence and that there are material contradictions and discrepancies in the evidence of prosecution witnesses. He further submitted that the impugned judgment is non-speaking and no sound reasons have been assigned by the trial Court for its findings. He prayed for allowing instant appeal and for his acquittal of the charges.

9. Learned A.P.G. appearing for the State submitted that role against present appellant is that of ineffective firing. He also submitted that on the same set of evidence, co-accused Abdul Ghaffar and Ameer have been acquitted whereas believing the same evidence present appellant has been convicted by the trial Court. According to her, neither any injury was sustained by any of the members of the police party, nor even any scratch was caused to the police mobile/vehicle at the time of alleged incident; however, she formally opposed the appeal.

10. From the minute scrutiny of the facts of the alleged incident, it seems that the allegations against present accused/appellant, in the manner as stated by the prosecution, are highly doubtful. In the FIR as well as in the evidence of complainant ASI Ghulam Sarwar and PC Qurban Ali it has been stated that finding three accused, two were riding on one motorcycle whereas one i.e. present appellant riding on another motorcycle, coming in a very high speed, police chased them whereupon the accused started firing, thus the police also fired upon the accused in retaliation. Consequently, present appellant fell down and he was captured along with pistol, whereas other two culprits riding on another motorcycle made their escape good. Admittedly, the accused/appellant was ahead of the police party whereas police was chasing the accused. In such a situation, as to how it could be possible that while driving the motorcycle, at the same time, he would fire upon the police officials who were at the back/rear side of the accused. It is beyond one's imagination and common sense and does not appeal to the prudent mind rather it seems to be impossible.

11. Moreover, there are certain material admissions on the part of the prosecution witnesses. Complainant ASI Ghulam Sarwar in his cross-examination has categorically admitted: "It is correct to suggest that nobody was injured from either side nor any bullet was hit to police mobile...... It is correct to suggest that no bullet or cartridge was recovered from the place of incident by the Investigating officer. It is correct to suggest that case property was not sealed...... It is correct to suggest that I have not produced such entries of departure or arrival before this Court The accused was not referred towards Hospital for treatment. The hands of accused were tied with big Romal belongs to me..."

12. P.W. PC Qurban Ali, who also claims to be on patrolling duty with the complainant at the time of incident, in his cross-examination made following admissions: "It is correct to suggest that no empty was recovered from the place of incident by the Investigating Officer. The case property was not sealed...... The hands of the accused were tied with big Romal belongs to me... It is correct to suggest that nobody became injured from either side nor any bullet was hit to police mobile..."

13. ASI Mohammad Umar, I.O. of the case in his cross-examination made following admissions: "It is correct to suggest that I have not produced entry while we left the police station towards the place of incident...... It is correct to suggest that I have not recorded statement from the locality about the incident..."

14. From above admissions certain material discrepancies/lacunas emerge which create doubts, thus are fatal to the prosecution case. For instance; complainant as well as PC Qurban Ali have admitted that no bullet or cartridge/empty was recovered from the place of incident by the Investigating Officer, although the complainant has clearly admitted, "ten rounds each were fired by the police party." It is very strange that despite so many rounds having been fired by the police party, not a single empty/cartridge was recovered from the spot. This creates serious doubts in the prosecution story.

15. Besides, the complainant as well as PC Qurban Ali have also admitted that the case property/pistol was not sealed at the spot. Furthermore, neither the complainant nor the I.O. of the case has deposed that the pistol allegedly recovered from the accused was sent to Ballistic Expert for his opinion and report, nor any such report is available on the record. This also put severe dents in the prosecution case in view of the principle laid down by the Superior Courts. In this connection reference may be made to the judgment of a Division Bench of this Court passed in the case of Mashooq Ali Mallah v. The State reported in 2016 PCr.LJ Note 8, wherein case was decided in favour of the accused while holding as under: "While appreciating above evidence, it is manifest that the mashirnama of arrest and recovery dated 02.12.1998 reflects that K.K allegedly recovered from the possession of the appellant was neither sealed at the spot nor it was sent to the forensic and ballistic expert in order to know if the K.K allegedly recovered from the possession of the appellant was in working condition."

16. It is also significant to point out that the complainant has admitted in his cross-examination that he has not produced roznamcha entries of their departure from and/or arrival at the police station before the Trial Court. Likewise, I.O. of the case namely, ASI Mohammad Umar has also made similar admission. This is also injurious to the prosecution case. In the absence of any roznamcha entry it becomes suspicious as to whether, in fact, the police party had left the police station for the purpose mentioned in the FIR. Such failure on the part of prosecution has rendered its entire episode to be doubtful. This fact, by itself, is enough to disbelieve the prosecution evidence. In the case of Mour v. The State reported in 2016 PCr.LJ 1706 this Court, while dealing with the point of non-production of roznamcha entry, held as under: "Another point is that the complainant party left police station vide roznamcha entry No.42 but as per prosecution evidence said entry has not been produced at the time of time of recording of their evidence. Non production of this vital document in evidence has also created serious doubt regarding departure of police from police station."

17. Similar observations were made also in the cases reported in 2017 PCr.LJ 992 Peshawar, 2010 PCr.LJ 542 Quetta and 2002 PCr.LJ 51 (Abdul Sattar and others v. The State).

18. Yet there is another material discrepancy / legal flaw in the prosecution case. Admittedly, the place of alleged incident is situated in the town at the link road near Anti-Corruption Office and the time of incident is also 6.30 in the evening of 23.4.2011 which cannot be said to be dark hours of the night. Despite this, no independent person from the locality was associated as mashir of the arrest and alleged recovery of the pistol. The complainant and the mashir have also not said a single word that police even tried to procure any private person from the locality to act as mashir of arrest and recovery. This is violative of mandatory provisions of section 103, Cr.P.C.

19. The purpose of associating independent mashirs of the locality is to ensure the transparency of the recovery process. Needless to emphasize that in view of provisions of section 103, Cr.P.C. the officials making searches, recoveries and arrests, are reasonably required to associate private persons, more particularly in those cases in which presence of private persons is admitted, so as to lend credence to such actions, and to restore public confidence. This aspect of the matter must not be lost sight of indiscriminately and without exception. Only cursory efforts are not enough merely in order to fulfill casual formality, rather serious and genuine attempts should be made to associate private mashirs of the locality.

20. In this connection, it would be advantageous to refer to the case of Shan v. The State reported in 2015 PCr.LJ [Sindh] 747 wherein reference was made to a letter bearing No. J.P.32-R(S)/88-SCJ, dated 20th August, 1990 duly sent by learned Registrar of honourable Supreme Court of Pakistan to Inspectors General of Police of all the four provinces of Pakistan on the point of association of private witnesses in the process of recovery in criminal cases. It would be advantageous to reproduce hereunder the relevant portion from the said letter of honourable Supreme Court: "It has come to the notice of this Court that in a large number of criminal cases, the witnesses of recovery are from the police force and that the Police Officers concerned when appearing before the Court are often unable to give satisfactory explanation, why they failed to associate witnesses of the public in a case where the raid/recovery was planned well in advance. This Court has, therefore, directed that the requirement of associating non-officials witnesses in such cases should be impressed upon all concerned. (2) The Court has also directed in this context that the Courts should also examine two aspects of the issue in such cases. Is there a plausible explanation for not associating witnesses from the public; and whether some features of the cases in addition to ocular account given by the Police Officials support the prosecution version when denied by the defence. (3) It is suggested that the above orders of this Court should be brought to all concerned for strict compliance."

21. In the case reported as State v. Bashir and others (PLD 1997 SC 408) Honourable Supreme Court held as under: "As regards above second submission of Mr. M M Aqil, it may be observed that it has been repeatedly held that the requirements of section 103, Cr.P.C. namely, that two Members of the public of the locality should be Mashirs of the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public."

22. Yet in another case reported as Yameen Kumhar v. The State (PLD 1990 Karachi 275) this Court after discussing various case-laws on this point held as under: "A perusal of the aforestated authorities and a catena of judgments of various High Courts which we have not quoted here clearly lay down that section 103, Cr.P.C. is to be applied to recovery, search and arrest made during investigation of a crime. It has been termed as mandatory but not absolute and its non compliance in certain circumstances will not render search and recovery illegal. However, where during investigation of a crime recovery is made from any inhabited locality compliance with section 103 must be made. It cannot be ignored or brushed aside on the whims and caprices of the Investigating Officer except on well-founded grounds and in exceptional cases. If recovery has been made in contravention of section 103, it is the duty of the prosecution to explain it and give valid and reasonable explanation for such digression. Recovery is an important piece of evidence which is to be proved by disinterested, independent and respectable witnesses. Such witnesses should be of the locality if the circumstances of the case permit. Section 103 embodies rule of prudence and justice. It is intended to eliminate and guard against 'chicanery' and 'concoction, to minimise manipulation and false implication. It is for these reasons that there is a consensus in the Superior Courts that compliance with section 103 should not be bypassed nor that its applicability be restricted to proceedings under Chapter VII only. The principles of section 103 have been applied and practised during investigation in crimes for so long and with such regularity and force that any attempt to restrict it to proceedings under Chapter VII only will unsettle the settled law. The provisions of Chapter VII make it clear that they relate to the search of any place but it cannot be restricted only to house or a closed place, it can be an open place, open area, a. playground, field or garden from where recovery can be nude for which search is conducted. Although in strict sense the provisions of section 103 are restricted to searches under Chapter VII of Cr.P.C. it has become a practice to apply it to all recoveries made by the Police Officers while investigating any crime. The rules of justice enunciated by section 103 are so embedded in our criminal, jurisprudence and so universally accepted that in all criminal cases two mashirs are always cited for recovery and reliance is placed on these witnesses in the ordinary course provided they are independent, respectable and inhabitants of the locality. The residence of the mashirs becomes relevant depending on the facts of the case. The emphasis should be on respectability."

23. In view of aforesaid factual and legal position, the recovery of the alleged firearm weapon from the accused/appellant has lost its evidentiary value.

24. It is also worthwhile to point out here that while convicting present appellant, the trial Court has acquitted co-accused Abdul Ghaffar and Ameer although the prosecution witnesses have fully implicated the said two co-accused in the commission of the alleged offence. Needless to emphasize that 'rule of consistency' demands that if an accused has been extended certain relief, then the co-accused with the allegation of similar nature should also be extended such benefit.

25. In this connection, reference may be made to a judgment of honourable Supreme Court passed in the case of Mohammad Asif v. The State reported in 2017 SCMR 486 wherein it was held as under: "It is a trite of law and justice that once prosecution evidence is disbelieved with respect to a co-accused then, they cannot be relied upon with regard to the other co-accused unless they are corroborated by corroboratory evidence coming from independent source and shall be unimpeachable in nature but that is not available in the present case."

26. In another case reported as Umar Farooque v. State (2006 SCMR 1605) honourable Supreme Court held as under: "On exactly the same evidence and in view of the joint charge, it is not comprehendible, as to how, Talat Mehmood could be acquitted and on the same assertions of the witnesses, Umer Farooque could be convicted."

27. In the case of Mohammad Asif v. The State reported in 2017 SCMR 486 it was held by honourable Supreme Court that once prosecution witnesses were disbelieved with respect to a co-accused then, they could not be relied upon with regard to the other accused unless they were corroborated by corroboratory evidence which came from an independent source and was also unimpeachable in nature. In another case reported as Mohammad Akram v. The State (2012 SCMR 440) the apex Court while holding that same set of evidence which was disbelieved qua the involvement of co-accused could not be relied upon to convict the accused on a capital charge, acquitted the accused. In view of this legal position, appellant should have also been extended same benefit as given to the acquitted accused which was not done.

28. In order to ascertain as to whether similar role has been assigned by the prosecution to the acquitted accused or not, it would be advantageous to reproduce hereunder the relevant portions from the evidence of the prosecution witnesses. Complainant ASI Ghulam Sarwar deposed as under: "After patrolling different places, when we reached near anti corruption office, where we saw persons who were going on two motorcycles towards Mounder side. We due to suspect chased them and reached at Channa bridge at about 1830 hours. They on seeing us started firing upon us. We also fired upon them in our defence. Thereafter, we saw two persons made their escape good while one culprit fell down on the road...... I identify the escaped accused as Abdul Ghaffar, and Ameer Khushak..." P.W. P.C. Qurban Ali deposed as under: "Patrolling after different places when we reached near Anti Corruption Office at Link road, we saw persons sitting on two motorcycles. They on seeing us tried to run on motorcycles. The accused persons fired upon police party. We identify them as Abdul Ghaffar, but I do not know the name of other accused...."

29. From above it is crystal clear that allegation of making fire upon the police party has been made against all the three accused persons and not only against present appellant. As discussed above, it was nearly impossible for the appellant to have fired upon the police party while riding motorcycle as he was alone on the motorcycle, whereas it was very easy for the escaped / acquitted accused, more particularly for the accused who was sitting on the rear side to have fired upon the police party. In such a situation, it can safely be held that all the accused have been assigned similar role, therefore, 'rule of consistency' would certainly be applicable in the present case.

30. It is also an admitted position that even otherwise it was a case of ineffective firing as none of the police officials has sustained any injured at the hands of accused persons, nor any fire shot hit even the police mobile/vehicle. In this connection reference may be made to the case of Nazira v. Mukhtar Ahmed reported in 2003 SCMR 538, wherein honourable Supreme Court held that no injury was attributed to accused who had allegedly made ineffective firing. It was further held that High Court had justifiably and competently acquitted the accused on the charge for the reasons based on correct application of law and proper evaluation of evidence existing on record.

31. Needless to emphasize the well settled principle of law that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty is cast upon the accused to prove his innocence. It has also been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In the case reported as Wazir Mohammad v. The State (1992 SCMR 1134) it was held by honourable Supreme Court as under: "In the criminal trial whereas it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution."

32. In another case reported as Shamoon alias Shamma v. The State (1995 SCMR 1377) it was held by honourable Supreme Court as under: "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case.......Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise."

33. The accumulative effect of the abovesaid infirmities/ discrepancies and legal flaws in the prosecution case is; that the prosecution has not succeeded in discharging its obligation to prove the case against present appellant beyond shadow of reasonable doubt. It is now well settled that the accused is entitled to be extended benefit of doubt as a matter of right. In the present case, there are many circumstances which create doubts in the prosecution case. Even an accused cannot be deprived of benefit of doubt merely because there is only one circumstance which creates doubt in the prosecution story. In the case reported as Tariq Pervaiz v. The State 1995 SCMR 1345 the honourable Supreme Court held as under:- "The concept of benefit of doubt to an accused is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. 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 g ace and concession but as a matter of right."

34. For the foregoing reasons by a short order passed on 29.11.2019, instant appeal was allowed. Consequently, impugned judgment dated 19.03.2012 handed down by learned Sessions Judge, Dadu in Sessions Case No.285 of 2011 (re: The State v. Wazeer and others) being outcome of FIR No.187/2011 registered at P.S. 'A' Section Dadu, under sections 412 and 353, P.P.C., was set aside to the extent of conviction and sentence awarded to appellant Wazeer only, while it was maintained to the extent of acquittal of co-accused Abdul Ghaffar and Ameer. Appellant Wazeeer was present on bail, his bail bonds were cancelled and surety furnished by him stood discharged.

35. Above are the reasons for the said short order. JK/W-5/Sindh Appeal allowed.