2017 PLP 1779 (YLR)

ABDULLAH BALOCH, J.

This judgment disposes of Criminal Appeal No.(T)51 of 2016 filed by the appellant Kareem Bakhsh alias Suleman son of Ghulam Nabi, against the judgment dated 23rd December 2016 (hereinafter referred as, "the impugned judgment") passed by the learned Incharge Sessions Judge/ Additional Sessions Judge Panjgoor, (hereinafter referred as, "the trial Court"), whereby the appellant was convicted under Section 398/34, P.P.C. and sentenced to suffer seven (07) years R.I. with fine of Rs.50,000/- or in default thereof to further suffer three months S.I.; he was also convicted under Section 353, P.P.C. and sentenced to suffer two (02) years R.I. with fine of Rs.10,000/- or in default thereof to further suffer one (01) month S.I. and under Section 186, P.P.C. for three months with fine of Rs.1500/- or in default thereof to further suffer fifteen (15) days S.I., with the benefit of Section 382(B), Cr.P.C.

2. It is the case of prosecution that on 21st August 2016, the complainant Muhammad Sharif Barech, IP/SHO lodged FIR No.166/2016 at Police Station Panjgoor under Sections 324, 353, 394, 186, 34, P.P.C., stating therein that on the day of occurrence he along with other police officials was patrolling the area, when at about 5.50 p.m. one Siraj son of Raheem Bakhsh informed him that three persons armed with Kalashnikov de-loaded 10-drums of diesel from his vehicle and loaded the same in their vehicle blue in colour. On such information, a Naka was erected and found coming a vehicle 2000cc blue colour, which was signaled to stop, but instead the speed of the vehicle was accelerated and firing was started upon the police party, hence in a self defence the police party also made counter-firing and chased the vehicle, whereas the other patrolling party was also informed through wireless. It is further averred that at about 7.00 p.m. whilst chasing the vehicle of accused, the same was overturned and fell straight, when in the meanwhile two of the accused alighted from the vehicle and escaped by disguising themselves nearby the population, while one of the accused was arrested from the vehicle in injured condition, who was having Kalashnikov. On query, the said person disclosed his name as Kareem Bakhsh, while he disclosed the names of his accomplices as Abdul Ahad and Odaam.

3. In pursuance of above FIR, investigation was entrusted to PW-6 Taufeeq Ahmed, SI/IO, who during investigation visited the place of occurrence and prepared site plan of New Chatkan Bazar and Panchi; took into possession the empties of SMG, vehicle; he has also taken into possession ten drums of Diesel; recorded the statements of witnesses under section 161, Cr.P.C.; on completion of investigation, submitted the challan for trial of the accused.

4. At the trial, the accused Odaam and Abdul Ahad were declared as proclaimed offenders. The prosecution produced six witnesses. The appellant was examined under Section 342, Cr.P.C. However, neither he recorded his statement on oath under section 340(2), Cr.P.C. nor produced any witness in his defence. On conclusion of trial and hearing the arguments, the trial Court convicted and sentenced the appellant as mentioned above, whereafter the instant appeal has been filed.

5. Learned counsel for appellant contended that the impugned judgment passed by the trial Court suffers from mis-reading and mis-appreciation of evidence available on record; that all the witnesses made contradictory statements to each other and even made certain dishonest improvements, creating certain reasonable doubts, but the benefit of the such doubts have wrongly been withheld in favour of the appellant; that the alleged recovery of drums of Diesel and to that of arms and ammunition is doubtful; that no medical certificate of appellant has been obtained, or produced in the Court to corroborate the prosecution version; that no identification parade of the appellant was carried out; that the impugned judgment on the face of material available on record is not sustainable, thus the appellant is entitled to be acquitted of the charge.

6. On the other hand, learned Additional Prosecutor General while supporting the impugned judgment contended that sufficient incriminatory evidence has come on record connecting the appellant with commission of crime and the learned trial Court after proper appraisal of material available on record has rightly convicted and sentenced the appellant through impugned judgment, which otherwise is not open for interference by this Court. When confronted with the contradictions and discrepancies in the statements of prosecution witnesses, the learned Additional P.G. contended that the prosecution has produced impartial and dis-interested witnesses to substantiate the charge and the appellant has failed to point out any mala fide or ill-will against such witnesses to falsely implicate him, thus their testimony cannot be discarded merely on the basis of minor discrepancies, hence prayed for dismissal of appeal.

7. Heard the learned counsel and perused the available record. Perusal of record reveals that the prosecution in order to establish the charge has produced the evidence of six witnesses. The complainant of the case appeared as PW-1, who reiterated the contents of fard-e-bayan Ex.P/1-A. According to PW-1 while chasing the vehicle of accused party, the vehicle of the accused was capsized/ overturned and fell straight, hence two of the accused alighted from the vehicle and disguised in the nearby population, whereas the present appellant was in injured condition, hence was arrested in injured condition, whereas PW-4 stated that after arrest of the appellant he has taken him to hospital for medical treatment. Considering such portion of the statements of PW-1 and PW-4, an idea develops in a prudent mind that after capsizing or felling straight of the vehicle of accused, two of the accused being in normal condition or being minor injured succeeded in fleeing away, while the condition of the appellant was serious to such extent that he could not move or flee away. Hence, was shifted to hospital for medical treatment, but the prosecution has failed to produce the medical certificate or the concerned doctor, who had examined and medically treated the appellant. The medical evidence was necessary to have been produced to corroborate the prosecution case, but no such evidence was produced. Even otherwise, no any explanation in such behalf has been tendered by the Investigating Officer to justify the non-production of medical evidence, hence a dent has been caused to the case of prosecution.

8. The statements of PW-1 Sharifullah Barech, complainant as well as PW-5 Siraj are also contradictory to each other. According to PW-1, on the day of occurrence at about 5.50 p.m. he along with other police officials was patrolling the area of Panchi, when a person namely Siraj (PW-5) came and informed about snatching of 10-drums of Diesel by unknown accused from him in the area Chakul and loading the same in their vehicle. However, after chasing the vehicle of accused and arresting the appellant, said Siraj at the spot identified the appellant as one of the culprit, who had snatched the drums of Diesel.

9. But, to the contrary PW-5 Siraj stated that on the day of occurrence three muffled face persons by show of weapon snatched 10-drums of Diesel in the area of Chukal and loaded the same in their vehicle, thereafter he informed one of his relatives, who had subsequently informed the police. According to PW-5 when he was going ahead, he found the police and the accused near the Airport and the police informed him that they have recovered 10-drums of Diesel from the accused. PW-5 further stated that since at the time of crime the accused were muffled faces, thus he cannot identify the appellant present in the Court.

10. The comparison of the statements of both the witnesses establishes the facts that not only the statements of both the witnesses are contradictory to each other, but they both altogether narrated a different story and in such like situation it will be difficult for a prudent mind to ascertain that who was placing the actual facts, when otherwise under the facts and circumstances of the case, both the witnesses are the star witnesses of the prosecution and being the central figures, the entire prosecution case revolves upon their testimony, but due to above mentioned glaring contradictions, their testimony cannot termed to be worth credence. The statement of PW-5 leads this Court to the conclusion that he has never directly approached the police nor stated the facts of the case. Even otherwise, he has failed to identify the appellant in the Court. It has further been noticed that PW-5, who has not supported the prosecution version thus he was required to be declared hostile, but this has not been done so. Thus, in no way the statements of either of the witnesses is helpful to the case of prosecution and a serious and irreparable dent and damage has been caused to the case of prosecution.

11. So far as, taking into consideration the contention of learned Additional Prosecutor General that the prosecution has produced impartial and dis-interested witnesses to establish the charge, thus their testimony cannot be discarded merely on the basis of minor discrepancies; suffice to observe here that it is not necessary that an impartial and independent witness, who is neither related to complainant nor inimical towards the accused, always speaks true, but it is the duty of the Court to scrutinize the statement of such witness with utmost care and caution. In this regard, I am fortified by the dictum of the Hon'ble Supreme Court in the case of Muhammad Saleem v. The State 2010 SCMR 374, wherein it has been held, as under:-- " ...The acid test of veracity of a witness is the inherent merit of his own statement. It is not necessary that an impartial and independent witness, who is neither related to the complainant nor inimical towards the accused would stamp his testimony necessarily to be true. The statement itself has to be scrutinized thoroughly and it is to be seen as to whether in the circumstances of the case the statement is reasonable, probable or plausible and could be relied upon. The principle that a disinterested witness is always to be relied upon even if his statement is unreasonable, improbable and not plausible or not fitting in the circumstances of the case then it would lead to a very dangerous consequence. Reference is invited to Muhammad Rafique v. State 1977 SCMR 457 and Haroon v. State 1995 SCMR 1627. ... Applying the test to the prosecution witnesses, we find that their statements do not come within the ambit of above rule of acceptance of evidence, therefore, no implicit reliance can be placed on such type of evidence without any corroboration which is lacking in the present case." In the above referred judgment of the Hon'ble Supreme Court, it has also been held that according to settled principle of appreciation of evidence, the statements of witnesses should have been in consonance with the probabilities fitting in the circumstances of the case and also confidence inspiring in the mind of a reasonable prudent man. If such elements are present, then the statement of the worst enemy of an accused may be accepted and relied upon without corroboration, but if these elements are missing, then statement of a pious man may be rejected without second thought.

12. Now adverting to the recovery of snatched drums of Diesel. suffice to observe here that according to the case of prosecution the accused had snatched 10-drums of Diesel and loaded the same in their vehicle, but all the witnesses narrated different stories with regard to recovery. PW-1 being complainant of the in his cross-examination stated that only two empty drums were recovered from the vehicle of accused, whereas to the contrary PW-2 has kept complete mum with regard to presence of full or empty drums in the vehicle or taking the same into possession by the Investigating Officer. However, PW-4 contradicted the prosecution case by mentioning the recovery of two drums of petrol from the vehicle and eight drums of petrol from the way while chasing the vehicle due to its falling from the vehicle on account of overspeed. Similarly, PW-5 stated that he was informed by the police that they have recovered ten drums of Diesel from the appellant. Besides, the Investigating Officer appeared as PW-6 and stated that they have recovered ten drums of Diesel from the vehicle.

13. The comparative study of statements of witnesses with regard to recovery of snatched drums of Diesels divulges the fact that the same are contradictory to each other as all the witnesses narrated a different story with regard to its recovery and in this manner the prosecution has badly failed to establish the recovery of drums of vehicle from the exclusive possession of the appellant. Hence, the recovery of snatched articles and its exhibit before the Court is not helpful to the case of prosecution.

14. Another vital aspect of the matter, which has badly damaged the case of prosecution is not conducting the identification parade of the appellant through the witnesses especially PW-5. It is observed that the alleged incident has been taken in episodes, commencing from snatching of drums of Diesel from PW-5 Siraj; subsequently when PW-4 Sallah-ud-Din, Constable, who signaled the accused to stop the vehicle, but instead the accused accelerated the speed by making indiscriminate firing upon the police and lastly when the vehicle of the accused was overturned and the appellant was arrested from the vehicle in injured condition. Admittedly, the appellant was not earlier known by the witnesses nor they knew his name, hence after the arrest of the accused, his identification parade was essential to have been carried out in view of the facts and circumstances of the case, in absence of identification parade the identity and involvement of the appellant in the commission of offence is doubtful. Reliance, in this regard is placed on the case of Khalil Ahmed v. The State 2015 MLD 236, Khawar v. The State 2014 YLR 2120 and Iqbal Zada v. State 2014 PCr.LJ 1397.

15. It has also been observed that according to the case of prosecution three accused initially snatched the articles from PW-5 armed with Kalashnikovs and they were also making continuous firing upon the police and the police has also made counter firing upon the accused, but astonishingly neither any of the police official, police or public vehicles, buildings, passerby or any of the government or private property has received any bullet nor any bullet hit either to the vehicle of the accused or any of the accused received any bullet injury. Even otherwise, only five empties of SMG were taken into possession by the I.O. Be that as it may, the Investigating Officer in order to establish the charge of making firing should have sealed the recovered Kalashnikov at the spot and thereafter sent the recovered Kalashnikovs along with empties to the Forensic Expert to establish that the recovered weapons were functional or otherwise or that such empties match with the recovered weapons, but no such evidence has been collected by the prosecution, rendering the case of prosecution as doubtful. Thus, mere recovery of Kalashnikovs or empties is not helpful to the case of prosecution. Reliance in this regard is placed to the case of Obaidullah v. The State 2015 MLD 1105.

16. It has been established from the facts and circumstances of the case discussed hereinabove, that the prosecution has miserably failed to establish the charge of snatching drums of diesel from PW-5 or making firing upon the police by the appellant along with his other accomplices. The case of prosecution is defective on all counts. PW-5 has not identified the appellant in the Court and all the remaining witnesses made contradictory statements to each other, and thus have created reasonable doubts in the case of prosecution. Furthermore, no identification parade has been carried out, which otherwise was essential in such like cases. Besides, neither the recovered crime weapons were sealed at the spot nor were sent to laboratory along with the recovered empties. Even no medical evidence has been produced. According to settled principle of law, the prosecution has to prove the charge against the culprits by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution has failed to discharge its responsibility of proving the case against the appellant. Sufficient and reasonable doubts have been created in the case of prosecution, but the same were over-looked by the learned trial Court. The Hon'ble Apex Court in a case titled Tariq Pervez v. The State reported in 1995 SCMR 1345, has held that "...The concept of benefit of doubt to an accused person 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 grace and concession but as a matter of right." For the above reasons, the appeal is accepted. The impugned judgment dated 23rd December, 2016 passed by the learned Incharge Sessions Judge/Additional Sessions Judge Panjgoor, is set aside and the appellant Kareem Bakhsh alias Suleman son of Ghulam Nabi, is acquitted of the charge. The appellant being in custody, is ordered to be released forthwith, if not required in any other case. JK/35/Bal Appeal accepted.