2016 P Cr (PLP)

MUHAMMAD IQBAL MAHAR, J.

This appeal is directed against the Judgment dated 27.5.2011 passed by learned Assistant Sessions Judge, Naushero Feroz in Sessions Case No. 242/2010 (State v. Mour and others) arising out of FIR No. 116/2010 P.S Naushero Feroz, whereby the appellants were convicted as under: Under section 324, P.P.C. to suffer R.I. for five years and to pay fine of Rs. 2000/- and in case of default to suffer S.I. for one month more, Under section 353, P.P.C. to suffer R.I. for two years and fine of Rs 1000/- each and in case of default to suffer R.I. for 15 days more, Under section 427, P.P.C. to suffer R.I. for one year and fine of Rs. 2000/- each and in case of default to suffer S.I. for one month more. However, benefit of section 382-B, Cr.P.C. was extended to the appellants.

2. The brief facts of prosecution case are that on 27.5.2010 complainant H.C. Muhammad Aves Lashari along with his subordinate staff left Police Station vide roznamcha entry No: 42 at 0030 hours for patrolling in Government Mobile. After patrolling different places when at 0200 hours they reached at abandoned Brick-kiln situated at Naushero Feroz-Mithiyani link Road saw through head light of Mobile, five armed persons standing on the Road. P.C. Muhammad Haroon identified them to be appellants Mour Solangi, armed with gun, Sajan Solangi, armed with pistol, Abdul Rauf Bhatti, armed with Kalashnikov, Nizamuddin Kalhoro and Riaz Lanjar, armed with guns. Complainant party stopped the Mobile, disclosed their identity to the accused persons and asked them to surrender before police but the accused persons started firing upon the police party with intention to kill them. The police party also returned the firing which continued for ten minutes. The complainant party caught hold of one person along with gun while the remaining four accused persons succeeded to run away by taking advantage of jungle. On inquiry, the captive disclosed his name to be Mour Solangi and further disclosed that gun was unlicensed. He also disclosed that the other accused were Sajan Solangi, Abdul Rauf Bhatti, Nizamuddin Kalhoro and Riaz Lanjar. Complainant found bullet marks on the Police Mobile. He prepared mashirnama of arrest of accused, recovery of gun from accused and ten empties from place of wardat in presence of P.C. Ghulam Hyder and P.C. Khadim Hussain and brought the accused and property at Police Station where he lodged the FIR at 0330 hours on behalf of the State.

3. After usual investigation, challan was submitted in the court of law. The learned trial Court after completing formalities framed the charge against the appellants at Ex: 9 to which they pleaded not guilty and claimed trial.

4. In order to prove its case the prosecution examined PW-1, P.C Khadim Hussain at Ex-15 who produced mashirnama of arrest, mashirnama of place of wardat and mashirnama of inspection of Police Mobile at Ex-16 to 18, PW-2, H.C Muhammad Aves Lashari at Ex-19 who produced FIR at Ex-19-A, PW-3, ASI Muhammad Ishaque Mallah at Ex-20 and then learned ADPP closed the prosecution side vide statement at Ex- 21.

5. The Statements of appellants were recorded under section 342, Cr.P.C. at Exh.22 to Exh.26 in which they denied the allegations of prosecution and claimed their innocence, however neither they examined themselves on oath nor led any evidence in their defense.

6. The learned trial court after hearing the learned counsel for the appellants, learned ADPP and considering the evidence available on record passed impugned judgment.

7. The learned counsel holding brief on behalf of learned counsel for appellants argued that the impugned judgment is result of non-reading and misreading of evidence; that the alleged incident took place in dark night but the PW Muhammad Haroon identified the appellants with their specific names, parentage and weapons in the head light of police mobile which is unbelievable; that as per prosecution case the appellants were identified by P.C. Muhammad Haroon but he was not examined by the prosecution. He further argued that the prosecution has failed to produce roznamcha entry which shows that in fact the police party had not left for patrolling; that the case of prosecution is that encounter continued for ten minutes between the appellants and police party but none on either side sustained any injury and that there are material contradictions in the evidence of prosecution witnesses which have not been considered by learned trial Court, therefore he submitted that the impugned judgment passed by learned trial Court is not sustainable under the law and is liable to be set aside.

8. On the other hand, learned APG supported the impugned judgment and submitted that the prosecution has proved its case against the appellants beyond any shadow of doubt, therefore, the learned trial Court was justified in recording conviction against the appellants.

9. Heard the arguments of learned counsel for the parties and perused the record. Perusal of record reflects that the firing continued for ten minutes in between appellants and police party who were armed with automatic and semi-automatic weapons but none from either side sustained any injury in the incident. The case of prosecution is that four appellants Abdul Rauf, Sajan, Nizamuddin and Riaz made their escape good but were identified by P.C. Muhammad Haroon on the glimpse of head light of police mobile in the pitch dark night and he disclosed their names with parentage and addresses but he was not examined by the prosecution before learned trial Court and his non production in the Court itself had created material flaw in the prosecution case. Secondly appellant-accused Mour disclosed the names of above four appellants before complainant party but after their arrest they were not put in identification parade, therefore, the identification of above four accused in Court after about one year carries no value. It is also settled principle of law that statement of one accused before police cannot be used against other co-accused. Furthermore, no question was put to appellant Mour in his statement under section 342, Cr.P.C. as to whether he disclosed the names of other accused to complainant party, therefore, this piece of evidence cannot be used against appellants Sajan, Abdul Rauf, Nizamuddin and Riaz.

10. Adverting to the case of appellant Mour, it is stated that as per prosecution case he was caught red handed along with gun and from place of incident ten empties of .12 bore were recovered but evidence of prosecution witnesses reveals that the alleged gun and empties were neither sealed at wardat or thereafter at Police Station nor were sent to Forensic Science Laboratory and there is no report qua matching the same with any crime empties collected from place of wardat, which as per prosecution case were 15 in number, hence mere recovery of gun from appellant Mour and empties from wardat would not improve the case of prosecution.

11. 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 recording of their evidence. Non-production of this vital document in evidence has also created serious doubt regarding departure of Police from Police Station. In this respect, I am fortified by a case of Long through Superintendent, Central Prison Hyderabad v. The State reported in 1999 PCr.LJ 595 in which it has been held by Division Bench of this Court that: "Appreciation of evidence ...Kalashnikov and ammunitions recovered from the accused were not sealed either at the time of recovery or at the time thereafter... said Kalashnikov was not sent to Forensic and Ballistic Expert to find out if the same was in working condition.... Failure of prosecution which was bound to establish the departure of police from the police station to prove in its evidence, the entry of station diary regarding proceeding of police party towards the pointed place, had casted doubt on the Prosecution case."

12. Apart from above, there are material contradictions in evidence of the prosecution witnesses as pointed out by learned counsel, which too makes the case of the prosecution as doubtful.

13. The upshot of the above discussion is that the prosecution has failed to bring home the guilt of the appellants/accused beyond reasonable doubt and it is settled law that benefit of every doubt is to be extended in favour of the accused. In this respect, I would like to rely upon case of Muhammad Akram v. The State reported in 2009 SCMR 230 wherein it has been held that: "Benefit of doubt

Principles

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."

14. Keeping in view the above facts and circumstances of the case and case laws referred above, benefit of doubt is extended in favour of the appellants and as a consequence whereof instant appeal was allowed by my short order dated 16.6.2016, whereby the appellants were acquitted and these are reasons for the same. HBT/M-131/Sindh Appeal allowed.