2023 PLP 1426 (MLD)

NAIMATULLAH PHULPOTO, J.

Appellant Dargahi was tried by learned Judge, Anti-Terrorism Court-I Sukkur, for offences under sections 402, 399, 324, 353, 395, 302, 148, 149, P.P.C. and under section 7 of Anti-Terrorism Act, 1997, arisen out of Crime No.15/2011, registered at P.S Baiji Shareef. After regular trial, vide judgment dated 30.06,2021, passed in Special Case No.09/2015 (Old) and Special Case No.06/2021 (New), appellant Dargahi was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life as Tazir. Appellant Dargahi was directed to pay compensation of Rs.100,000/- (one lac), to be paid to the legal heirs of the deceased, in terms of section 544-A, Cr.P.C. Appellant was also convicted under section 7(1)(a), Anti-Terrorism Act, 1997 and sentenced to imprisonment for life and to pay fine of Rs. 50,000/- in case of default to pay fine amount, he was directed to undergo for one year more. Appellant was convicted under section 395, P.P.C. and sentenced to ten years' R.I and to pay fine of Rs.10,000/- in default to suffer 05 months more. Appellant was also convicted under section 324, P.P.C. and sentenced to ten years' R.I. and to pay fine of Rs, 3000/- in default in payment of fine to undergo for one month. He was convicted for offence under section 353, P.P.C. and sentenced to 02 years' R.I. and to pay fine of Re.2000/- in case of default to undergo one month's more. Appellant was convicted under section 399, P.P.C. and sentenced five years' R.I. and to pay fine of Rs. 5000/- in default in payment of fine to suffer 03 months more. Appellant was also convicted for offence under section 148, P.P.C. and sentenced to 03 years' R.I and to pay fine of Rs.2000/- in default to suffer for one month more. All the sentencce were ordered to run concurrently. Appellant was extended benefit of section 382-B, Cr.P.C.

2. Brief facts leading to filing of the appeal are that on 29.03.2011, ASI Athar Ali of Police Station Baiji Shareef left P.S vide entry No.15 at 1730 hours along with his subordinate staff for providing security to religious gathering in village Chonga. It is stated that said gathering ended at 1.15 a.m., on 30,03.2011. ASI Athar Ali at that time received information that six armed persons were standing at link road Nauraja Minor bridge. ASI gave such information to PCs Haq Nawaz and Shahban. Thereafter, ASI Athar Ali and PC Shahban rode (sic.) on motorcycle to the pointed place and PC Haq Nawaz left on his motorcycle to the pointed place. It is alleged that PC Haq Nawaz was ahead of ASI Athar Ali, when police party reached at Nauraja minor, they saw on the head light of motorcycles six armed persons were standing there. They were identified by police party as 1) Gulsher son of Gulzar, 2) Asghar son of Ghulam Shabbir, 3) Ghulam Yaseen son of Sijawal 4) Dargahi son of Sijawal (present Appellant) 5) Nizamuddin son of Khuwajo all armed with Kalashnikovs and two unidentified persons whose faces were muffled armed with lathi and hatchet. It is alleged that accused caused butt blows to PC Haq Nawaz and he fell down, Police party challenged the culprits, then all accused persons fired upon police with intention to kill them. Police also fired in self-defence, encounter lasted for five minutes. Thereafter accused succeeded to run away, ASI Athar Ali and other constables saw that PC Haq Nawaz had received injuries on his head and back side of the body. It was also noticed that official rifle allotted to PC Haq Nawaz was not available. ASI Ather Ali gave information of incident to high officials. Resultantly, SHO Police Station Baiji Shareef and D.S.P Qalander Bakhsh Soomro arrived at place of incident and PC Haq Nawaz was shifted to Pano Akil hospital in injured condition. ASI Athar Ali lodged FIR of the incident on 30.03.2011 at 0700 hours against above-named accused under sections 402, 399, 324, 353, 147, 148,149, 395, P.P.C. PC Haq Nawaz succumbed to injuries, section 302, P.P.C. and 7, A.T.A., 1997 were added. After usual investigation challan was submitted against the accused under section 512, Cr.P.C. Appellant was subsequently arrested and faced trial.

3. Trial Court the charge against Appellant Dargahi at Exh.

11. He pleaded not guilty and claimed to be tried. In order to prove its case, prosecution has examined ASI Athar Ali (PW1). PC Muhammad Shahban (PW2). Asif Ali (PW3). Dr. Gul Hassan Bajkani (PW4). Atta Muhammad Abbassi, investigation officer (PW5). Thereafter, prosecution side was closed.

4. Trial Court recorded statement of Appellant under section 342, Cr.P.C. at Exh.22 in which appellant accused claimed false implication in this case, neither he examined himself on oath in disproof of charge nor led any evidence in defence.

5. Learned trial Court after hearing learned counsel for the parties and assessment of the entire evidence, vide Judgment dated 26.11.2015 convicted and sentenced the appellant as stated above. Appellant preferred Criminal Appeal No. D-107 of 2015 before this Court, conviction was set aside, the case was remanded by this Court vide Judgment dated 13.04.2021, to the trial Court with directions to re-call PW-5 inspector Atta Muhammad Abbassi Investigating Officer of the case, for producing roznamcha entries Nos. 2 and 10 and Chemical Examiner's Report with further directions to record statement of appellant afresh under section 342, Cr.P.C by putting each and every incriminating piece of evidence to him for his explanation/reply.

6. Trial Court re-called and re-examined the investigating Officer on 03.06.2021-and roznamcha entries Nos.2 and 10 were produced so also the original report of the Chemical examiner. Statement of appellant was recorded under section 342, Cr.P.C. afresh at Ex.31. Appellant claimed false implication in this case and denied allegations of prosecution. In statement, what else he has to say? he stated as under:- "I am innocent. I have falsely been implicated in this case by police due to enmity and to show their efficiency otherwise no such incident took place in the vicinity as stated by the police. In fact it is an unseen incident and deceased had entered in the house of Chachar community and was died there. No cogent evidence has produced by the police against me nor case property was produced. There is dispute between Chachar and Mahar Community going in the area and such FIR No.26 of 2004 at PS Raza Goth and FIR No.39/2012 PS Pano Aqil have been registered and copies of FIRs have already been exhibited in earlier statement of mine, due to such enmity I have been involved falsely in this case. I pray for justice". Appellant did not examine himself on oath or led any evidence in defence. After hearing learned counsel for the parties, appellant Dargahi was convicted under the above-referred sections. Hence, he has filed this appeal.

7. Facts of this case as well us evidence produced before the trial Court find an elaborate mention in the judgment passed by trial Court and, therefore, same may not be re-produced here so as to avoid duplication and unnecessary repetition.

8. Mr. Mehfooz Ahmed Awan, learned advocate for legal heirs of deceased PC Haq Nawaz, at the very outset, argued that appellant Darghai has wrongly invoked jurisdiction of this Court, in Hudood cases Federal Shariat Court has exclusive jurisdiction conferred by constitutional provisions which cannot be curtailed by subordinate legislation. He further submitted that in the challan, sections 302, 324, 353, 395, 399, 402, 148, 149 read with sections 17/3, Offences Against Property (Enforcement of Hadd) Order, 1979 read with section 7, ATA have been applied. Mr. Awan in support of his submissions, relied upon the case reported as Mian Abdur Razzaq Aamir and others v. Federal Government of Islamic Republic of Pakistan and others (PLD 2011 Federal Shariat Court 1), Momin v. The State and another (PLD 2020 Peshawar 70), Shabbir Hussain and another v. The State (2004 PCr.LJ 573) and Ghazanfar Ali v. The State (2010 YLR 657).

9. Mr. Qurban Ali Malano, learned advocate for the appellant, on the point of jurisdiction of this Court to hear this appeal, argued that the challan was submitted before Anti-Terrorism Court, for offences under sections 302, 324, 353, 395, 399, 402, 148, 149 read with sections 17/3, Offences Against Property (Enforcement of Hadd) Order, 1979 read with section 7, A.T.A., 1997 and further argued that in the view of section 25(1)(a) of A.T.A., 1997, an appeal against final judgment of an Anti-Terrorism Court shall lie to High Court. In support of his submissions, relied upon the case of Tahir Mehmood and 2 others v. The State (2004 PCr.LJ 1756).

10. Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General argued that under section 25(1) of Anti-Terrorism Act, 1997, final judgment can only be challenged before this Court not before the Federal Shariat Court and he has supported the view of learned Advocate for the Appellant and placed reliance upon the judgment passed by this Court in Criminal Jail Appeal No. D-42 of 2002 and Confirmation Case No.03 of 2002 dated 01.06.2010.

11. It is pertinent to mention here that in this case challan was submitted against appellant before learned Judge, Anti-Terrorism Court-I, Sukkur, for offences under sections 302, 324, 353, 395, 399, 402, 148, 149 read with sections 17/3, Offences Against Property (Enforcement of Hadd) Order, 1979 read with section 7, A.T.A., 1997 and judgment has been passed by Judge Anti-Terrorism Court. Under section 25(1) of Anti-Terrorism Act, 1997, an appeal against the final judgment of an Anti-Terrorism Court shall lie to High Court. For the sake of convenience, section 25 of A.T.A., 1997 is reproduced as under:- "

25. Appeal.

(1) An appeal against the final judgment of an Anti terrorism Court shall lie to a High Court. (2) Copies of the judgment of an Anti-Terrorism Court shall be supplied to the accused and the Public Prosecutor free of cost on the day the judgment is pronounced and the record of the trial shall be transmitted to the High Court] within three days of the decision. (3) An appeal under subsection (1) may be preferred by a person sentenced by an Anti-Terrorism Court to a High Court within fifteen days of the passing of the sentence. (4) The Attorney General [Deputy Attorney General, Standing Counsel] for an Advocate General- or an Advocate of the High Court or the Supreme Court of Pakistan appointed as Public Prosecutor, Additional Public Prosecutor or a Special Public Prosecutor] may, on being directed by the Federal or a Provincial Government, file an appeal against an order of acquittal or a sentence passed by an Anti-terrorism Court] within [thirty] days of such order. [(4A) Any person who is a victim or legal heir or a victim and is aggrieved by the order of acquittal passed by an Anti-terrorism Court may, within thirty days, file an appeal in a High Court against such order. (4B) If an order acquittal is passed by an Anti-terrorism Court in any case instituted upon complaint and the High Court, on an Application made to it by the complainant in this behalf, grant Special leave to appeal from the order of acquittal, the complainant may within thirty days present such an appeal to the High Court". In the view of section 25(1) of Anti-Terrorism Act, 1997, final judgment of Anti-Terrorism Court shall lie to this Court. Additionally, Anti-Terrorism Act, 1991 is special enactment the same is brought into the force or prevention of terrorism, sectarian violence end for speedy trial of heinous offences and for matters connected therewith and incidental thereto. In the view of above, objection raised by learned advocate for legal heirs of deceased about the maintainability of appeal is without legal force.

12. Now, we will discuss the merits of the case. Mr. Qurban Ali Malano, advocate for Appellant mainly contended that identification of the appellant was on the head light of motorcycle, which was weaker source evidence requiring strong corroboration but same was lacking in this case; that motorcycle, which was source of light was not produced before trial court; that according to prosecution evidence, appellant Dergehi was armed with kalashnikov but the same was not used by him, that as per post mortem report Exh.16-D deceased HC Haq Newaz died by means of injuries caused by hard and blunt substance; that ASI Athar Ali and PW.PC Shahban have deposed that they had identified appellant and others by names at the time incident, but none of the PWs have explained as to how they knew accused persons prior to incident; investigation was conducted in the case before registration of FIR. Lastly, it is argued that there are several circumstances in the prosecution case which created reasonable doubt and appellant is entitled to the benefit of doubt. In support of his contentions, he has relied upon the case of Arshad Khan v. The State (2017 SCMR 564) and Latif and 3 others v. The State (PLD 2005 Karachi 295).

13. Mr. Zulfiqar Ali Jatoi, Additional P.G. argued that appellant was identified on head light of motorcycle. Police officials had no ill-will or enmity with appellant to falsely implicate him on this case. Prosecution evidence is reliable and trustworthy. Lastly, argued that prosecution had established its' case against appellant. In support of his submissions, relied upon the case of Muhammad Ilyas and others v. The State (2011 SCMR 460).

14. Mr. Awan appearing for legal heirs of deceased PC Haq Nawaz argued that incident occurred on 29.03.2011 at 0120 hours and FIR was lodged on 30.03.2011 at 0700 hours. Appellant was named in the FIR. Police Officials had no enmity with the appellant to falsely implicate him in this case and prayed for dismissal of appeal.

15. As regards to unnatural death of PC Haq Nawaz is concerned, it is not disputed by the defence counsel. Trial Court has also held that PC Haq Nawaz died un-natural death by means of hard blunt substance. Therefore, finding of trial Court regarding un-natural death of PC Haq Nawaz requires no interference by this Court.

16. Now the material point for consideration is whether appellant Dargahi is responsible for causing death of PC Haq Nawaz as held by trial Court.

17. From the re-assessment of the evidence, we have come to the conclusion that prosecution had failed to prove its' case against appellant for the reasons that incident took place on dark night at 01:20 a.m., certainly the identification on the headlight of the motorcyle was eak type of evidence requiring strong corroboration but the same was badly lacking. It was astonishing to note that motorcycle, which was source of identification, was not produced before the trial Court. Rightly reliance has been placed upon the case of Latif and 3 others v. The State (PLD Karachi 295). We feel that possibility of mistaken identity cannot be satisfactorily excluded, It is case of prosecution that appellant was armed with Kalashnikov at the time of incident but firearm injury was found in post mortem report, Post mortem report Exh.16-D reflects that deceased had received injuries by means of hard and bunt substance. According prosecution evidence, police officials had identified the accused by name, giving parentage and addresses but none of the P.Ws explained as to how they knew appellant prior to incident. Non-disclosure of source/previous connection with the appellant has also created reasonable doubt regarding identification of appellant at the time of incident.

18. Moreover, trial Court failed to notice material contradictions and discrepancies in the evidence of Prosecution witnesses on material particulars of the case. Though the impugned judgment is quite lengthy, yet was sheerly, lacking in the ingredients of a judicial verdict for want of sound and valid reasons for arriving at the conclusion. It seems that despite absence of convincing positive evidence, appellant was convicted, which in no circumstances could be sustained. It is well settled principle dispensation of justice in the criminal cases that the guilt against the accused must rest surely and firmly on the evidence produced in the case and plan inference of the guilt may irresistibly be drawn from the evidence on the record. Investigation nee been carried out by the same police, in this case such investigation cannot be termed as honest investigation as evidence of police officials appears to be unnatural and unbelievable. The standard of proof should have been far higher as compared to any other criminal case when according to prosecution, it was a police case in which one police constable was murdered it was thus, desirable and even imperative that such case should have been investigated by some other agency, as police in such case, could not have been investigators of their own case. Such investigation lacks independent character and conviction cannot be based on the basis of such investigation, when it is riddled with many lacunas as discussed above. Rightly reliance is placed upon the case of Zeeshan alias Shani v. The State reported as 2012 SCMR 428, wherein it has observed as under:- "

10. Escape of the complainant and the prosecution witnesses also raises serious doubt about their presence at the spot when according to the prosecution the assailant fired as many as six shots. The complainant who was sitting next to the deceased could not have escaped unhurt. Yes, coincidence cannot be ruled out but in the matrix of this case we would be stretching its arm too long by attributing his escape to that. Even escape of the assailant does not fit in with the surrounding when the deceased, complainant and the PWs were admittedly armed and there is nothing on the record to show as to what restrained them to retaliate with immediately, after the assailant fired the first shot. In the absence of any explanation the story so narrated would not appear to be credible from any angle it is looked at.

11. The standard of proof in this case should have been far higher as compared to any other criminal case when according to the prosecution it was e case of police encounter. It was, thus, desirable and even imperative that it should have been investigated by some other agency. Police, in this case, could not have been investigators of their own cause. Such investigation which is woefully lacking independent character cannot be made basis for conviction in a charge involving capital sentence, that too when it is riddled with many lacunas and loopholes listed above, quite apart from the afterthoughts and improvements. It would not be in accord of safe administration of justice to maintain the conviction and sentence of the appellant in the circumstances of the case. We, therefore, by extending the benefit of doubt allow this appeal, set aside the conviction and sentence awarded and acquit the appellant of the changes. He be set free forthwith if not required in any other case.

19. The sequel of above discussion is that the prosecution has miserably failed to prove its case against the appellant/accused beyond shadow of doubt and it is settled proposition of law that for giving benefit of doubt to an accused it is not necessary that there should be many circumstances, if there is a single circumstance which creates reasonable doubt about the guilt of the accused, then the accused will be entitled to its benefit not as a matter of grace and concession but as matter of right. In this respect, reliance can be placed upon case of Muhammad Akram v. The State (2009 SCMR 230) wherein it has been held by honourable Supreme Court that; "For giving benefit of doubt it is not necessary that there should be many circumstances creating doubts

Single circumstance creating reasonable doubt in a prudent mind about the guilt of the accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right."

20. For the above stated reasons, wet have come to the conclusion that prosecution had failed to bring the guild home of the appellant. Resultantly, the appeal is allowed. Conviction and sentences passed against appellant by trial Court vide, judgment dated 30.06.2021 are set aside. Appellant Dargahi son of Sijawal Mahar shall be released forthwith if not required in some other case. JK/D-1/Sindh Appeal allowed.