2022 P Cr (PLP)

ABDUL MAALIK GADDI, J.

Through this Criminal Jail Appeal, the appellant has assailed the legality and propriety of the judgment dated; 31.08.2016 passed by the learned Judge Anti-Terrorism Court, Naushehro Feroz in Special Cases Nos.07 and 08/2014, Re-The State v. Nazir alias Loti and others arising out of Crime Nos.07 and 08/2014 for the offences punishable under sections 324, 353, 148, 149, P.P.C. read with 6/7, A.T.A., 1997 and 23(i)(a) and 24, Sindh Arms Act, 2013 registered at Police Station Radhan, respectively, whereby the learned trial Court after full-dressed trial convicted and sentenced the appellant as stated in point No.3 of the impugned judgment. For the sake of convenience, it would be proper to reproduce the findings recorded in point No.3, which reads as under; "In view of my findings on points Nos.1 and 2, I have come to the conclusion that prosecution has proved its case against accused Nazir alias Loti beyond shadow of reasonable doubt. I therefore convict him for the offence punishable under section 324, P.P.C. read with section 7(1)(b) of Anti-Terrorism Act, 1997 and sentence him to suffer R.I for ten years and fine of Rs.50,000/-, in case of default of payment, he shall suffer six months S.I more. I also convict accused Nazir alias Loti for offence punishable under section 353, P.P.C. read with section 7(1)(h) of Anti-Terrorism Act, 1997 and sentence them to suffer R.l for five years. I also convict accused Nazir alias Loti for offence punishable under section 23(i)(a) read with section 25, Sindh Arms Act, 2013 and sentence him to suffer R.I for seven years. All the sentences awarded to accused Nazir alias Loti shall run concurrently and accused is given benefit of section 382-B, Cr.P.C. Accused Nazir alias Loti is produced in custody, he is remanded to Central Prison Sukkur with conviction warrant and slip to serve out the sentence. However prosecution has miserably failed to prove its case against accused Dhani Bux Mashori and Adil Khoso beyond shadow of reasonable doubt, I therefore, while giving benefit of doubt acquit them from the charge of this case under section 265-H(1), Cr.P.C. They are produced in custody, remanded back with directions to be released forthwith if not required in any other custody case. The case of absconding accused be kept on dormant file, till they are arrested and produced before the Court as already ordered. Issue life time NBWs against them to concern SHO for execution."

2. Facts necessary for the disposal of this appeal are that the complainant SIP Ali Akbar Khokhar lodged FIR at Police Station Radhan Station, stating therein that he was ordered by officers that nominated accused Nazir alias Loti Birhamani Jatt and others of Crime No.449/2013, under sections 302, 324, 353 and 404, P.P.C. and section 7, A.T.A., 1997 of Police Station Sadhoja are available in jurisdiction of Police Station Radhan Station, District Dadu, who martyred ASI Ghulam Sarwar Mashori and was also ordered to conduct raid in company of SHOs of various Police Stations of Moro Sub-Division. SHOs of different Police Stations were asked to reach at Moro bypass. He with PC Abdul Majeed, PC Moula Bux, PC Muhammad Nawaz, PC Nadir Ali, PC Wazir Ali Soomro and DPC Nizamuddin in government vehicle along with official weapons left Police Station vide entry No.3 dated; 29.01.2014 at about 0900 hours. They reached at Moro bypass, where SHO Abdul Majeed Arain of PS Moro, SHO Nadir Hussain Bhatti of PS Dars, SHO Lutuf Ali Shah of PS Qamaruddin, SHO Mazharuddin Khoso of PS New Jatoi, SHO Zafarullah Bajwa of PS Laghari and SHO Sahib Khan Lashari of PS Fareed Dero along with subordinate staff reached. They left from there in police mobiles. They asked Dadu Police for their help through Dadu Control. When they crossed Piyaro Station, SHO Muhammad Murad Mangrio of PS Rukhan, Sikandar Ali Bhurgiri Incharge PP Piyaro Station along with subordinate staff and Mujahid (one) Dadu HC Soof Khan, HC Ali Hyder Gopang, HC Zulfiqar Ali Turk, HC Dhani Bux Lakho, PC Qaimuddin Solangi, PC Zameer Hussain Chandio, PC Maqbool Ahmed Dahar, PC Barkat Ali Panhwar, PC Rajib Ali Khoso, PC Qamaruddin Babar, PC Chuttal Khan Babar joined them along with police mobiles. At about 1230 hours they reached at house of Shoukat Ali Janwari situated in Abra Muhalla New Colony Radhan City and saw 13/14 persons came out along with weapons. PC Abdul Majeed Khoso, PC Muhammad Nawaz Tunio and other police officials saw and identified them to be Nazir alias Loti son of Akan alias Akbar Birhamani Jatt, Dhani Bux son of Imam Bux Mashori, Talib son of Tharo Khoso, Rasool Bux alias Porho son of Ghulam Hyder Khoso, Zulfiqar son of Khair Muhammad Khoso, Bhutto alias Kirir son of Khair Muhammad Khoso, Ali Bux son of Imam Bux Mashori and Jaffar son of Arz Muhammad Khoso armed with G3 riffles, Ali Gul son of Imam Bux Mashori armed with repeater, Adil son of Akbar Khoso armed with pistol and 3/4 unknown persons with open faces. On seeing police, accused persons made straight fires upon police party in order to commit their qatl-i-amd. Police party also took position and retaliated the same in their self defence. Encounter continued for about 15 minutes. Accused made indiscriminate firing in order to create terror and harassment, then fled away by taking advantage of streets and houses. ASI Manzoor Ali Chandio of PS Radhan Station reached there along with subordinate staff. Police party proceeded ahead and saw one accused lying in injured condition and a KK was available beside him. SHO Abdul Majeed Arain of PS Moro, SHO Zafaruddin Bajwa of PS Laghari were nominated as mashirs. Accused was apprehended and weapon taken in custody. On inquiry, he disclosed his name as Nazir alias Loti. They saw accused had sustained injuries on left side of thigh and head, blood was oozing. Recovered KK was checked and found empty. Accused Nazir alias Loti was arrested. On inquiry accused Nazir alias Loti disclosed that it is same KK from which he martyred ASI Ghulam Sarwar Mashori. Property was sealed at spot. Accused Nazir alias Loti on inquiry disclosed names of his companions as Ali Bux Mashori, Dhani Bux, Ali Gul Mashori, Talib Khoso, Rasool Bux alias Porho, Zulfiqar Khoso, Jaffar Khoso, Bhutto alias Kirir Khoso, Adil Khoso and others who were friends of Ali Bux Mashori. Accused Nazir alias Loti was also arrested in Crime No.449/2013 of P.S Sadhoja. Memo of arrest and recovery was prepared in presence of mashirs. Injured accused was referred to Dadu for treatment through Radhan Police where he lodged FIR against accused persons on behalf of the State, under sections 324, 353, 148 and 149, P.P.C. and sections 6/7, A.T.A., 1997. He also lodged separate FIR No.08/2014 under section 24, Sindh Arms Act against accused Nazir alias Loti on behalf of the State.

3. To prove its case, prosecution examined PW-1 ASI Manzoor Ali Chandio at Ex.15, he produced copy of FIR No.7/2014 at Ex.15/A, copy of FIR No.8/2014 at Ex.15/B, memo of inspection of place of incident at Ex.15/C. PW-2 ASI Muhammad Ishaque at Ex.16. PW-3 complainant Sub-Inspector Ali Akbar Khokhar at Ex.17, he produced copy of memo of arrest and recovery at Ex.17/A. PW-4 Inspector Abdul Majeed Arain at Ex.18. PW-5 Medical Officer Dr. Sikandar Ali Naich at Ex.19, he produced Medical Certificate at Ex.19/A, police letter at Ex.19/B, PW-6 Inspector Loung Khan Shar at Ex.20. PW-7 PC Abdul Majeed Khoso at Ex.21.

4. Prosecution witnesses were cross-examined by the learned counsel for the appellant and, thereafter, learned DDPP for the State closed the side of prosecution vide statement at Ex.22. The statement of accused was recorded under section 342, Cr.P.C. at Ex.25, wherein he stated that he is innocent and on the instance of complainant of Crime No.449/2013 under sections 302, 324, 353 and 404, P.P.C. and section 7, A.T.A., 1997 registered at Police Station Sadhoja, in which one ASI was murdered. He further stated that police has falsely implicated him in this case; however, neither he examined himself on oath nor led any evidence in his defence.

5. Learned counsel for the appellant has argued that the appellant is innocent and has been falsely implicated by the Police; that the alleged recovery of weapon and bullets have been foisted upon him and in-fact no incident has taken place as stated in FIR and despite of availability of public, no independent person has been cited as witness, while the alleged place of incident was surrounded by houses. Per learned counsel, the evidence so brought on record by the prosecution witnesses in this case is contradictory in nature to each other on material particulars of the case. During the course of arguments, learned counsel for the appellant has taken to us to the evidence of prosecution witnesses and pointed out the number of contradictions in between the statements of the prosecution witnesses, therefore, according to him on the basis of contradictory evidence, conviction cannot be maintained. He further contended that the appellant is maintaining his entire family and due to his confinement in jail, they are suffering from their livelihood. Learned counsel for the appellant has also stated that co-accused Adil and Dhani Bux have been acquitted by the learned trial Court on basis of same evidence but convicted the appellant without assigning any valid and lawful reason. Hence under these circumstances, he prayed for acquittal of appellant by allowing this appeal.

6. Learned DPG for the State by supporting impugned judgment has sought for dismissal of instant appeal by contending that the appellant has rightly been convicted by the learned trial Court on proper evaluation.

7. We have heard the learned counsel for the parties at some considerable length and also perused the record.

8. After careful consideration and meticulous examination of the available record, suffice to say that mere heinous offence of nature 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 is always upon the prosecution to prove the case beyond shadow of doubt. Keeping in view of this basis touchstone of criminal administration of justice, we have examined the ocular evidence as well as document on record along with impugned judgment.

9. After perusing the record, we have come to the conclusion that prosecution has failed to prove its case against the appellant for the reasons that all the pieces of evidence by the prosecution in this case are weak in nature. As per police papers, it reveals that on the relevant date, the complainant received spy information with regard to availability of the present appellant along with other accused who were involved in Crime No.449/2013 of Police Station Sadhoja and on such information when complainant party reached at the pointed place where accused after seeing police party started firing upon them and in retaliation, police party also fired upon the accused persons and this encounter was continued for about 15 minutes but surprisingly neither anybody from police side received any bullet injury nor any bullet was hit to police vehicle nor any bullet was hit to any object near by; however, during this alleged encounter only present appellant received bullet injuries. As per record, this incident took place in Abra Muhalla, which is as per evidence surrounded by houses but despite of this fact no any independent person of the said locality has been cited as witness to the recovery proceedings. It is an admitted fact that complainant had an advance information about the availability of the present appellant along with other accused but despite of this fact, he even did not bother to take any independent witness either from the place of information or from the place of incident, thus, in our opinion Provisions of section 103, Cr.P.C, which is mandatory in nature and cannot be ignored without any proper justification as violated. The prime object of the above provision is to ensure the transparency and fairness on the part of police during the course of recovery, curb the false implication and minimize the scope of foisting of fake recovery upon the accused.

10. It is significant to mention that section 34 of Sindh Arms Act, has not expressly excluded the provision of section 103, Cr.P.C. but on the contrary, section 34 has provided a legal cover that police officials also can act as witnesses of recovery besides the private persons. The provision of section 34 of Sindh Arms Act, provides that any police officer or person present on the spot can be witnessed of search and recovery, therefore, it was prime duty of the police to prefer a private witness if available at the spot to maintain the transparency and fairness of the alleged recovery. It is the prime duty of Courts to ensure during the course of the administration of justice that there must be a plausible explanation for non-association of witnesses from public. Adverting to the merits of the case in hand, no valid reason or plausible explanation has been furnished by the prosecution for non-association of independent witnesses by the police when independent people were available at the place of recovery, which was a thickly populated area. Therefore, on this ground false implication of the appellant in this case could not be ruled out.

11. We have noted that the alleged recovery was made on 29.01.2014 but the recovered property was received to the office of the Incharge Forensic Science Laboratory Forensic Division, Larkana on 31.05.2016 after the period of more then two years as reflected from Ex.24 and nothing is on record that during this intervening period before whom the case property was lying and if it was lying in the Malkhana of Police Station, no entry of Malkhana of Police Station has been produced, therefore, on this ground, false implication of the appellant in this case cannot be ruled out.

12. We have also noted that on the basis of evidence, so produced by prosecution, the learned trial Court acquitted co-accused Adil and Dhani Bux while convicted and sentenced the appellant as stated above. In our view if the prosecution witnesses, if disbelieved for co-accused persons, could not be relied upon with regard to the accused unless they were corroborated by evidence, which came from an independent source, that was also unimpeachable in nature, such unimpeachable corroboration was not brought on record by the prosecution, the same is lacking in this case.

13. During the course of arguments, we have asked the question from the learned DPG to explain whether the State has filed any appeal against the acquitted accused, to which, he replied in negative, this ground also create doubt in the prosecution case.

14. We have also noted that present appellant has been acquitted in Crime No.449/2013 of Police Station Sadhoja by this Court and also noted that neither the person through whom the alleged recovered property was delivered to office of the Incharge Forensic Science Laboratory Forensic Division, Larkana nor anyone from office of the Incharge Forensic Science Laboratory Forensic Division, Larkana has been examined in this case. Not only this, the learned counsel for the appellant has pointed out number of contradictions in between the evidence of the prosecution witnesses on the material particular of the case when these contradictions, confronted to learned DPG to explain the position, he had no answer with him.

15. Admittedly, in this case, there are number of infirmities/lacunas, which have created serious doubt in the prosecution case. It is settled principle of law that for extending benefit of doubt, it is not necessary that there should be multiple circumstances creating doubt. If a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in the case of Tariq Pervez v. The State reported as 1993 SCMR 1345, wherein the Hon'ble Supreme Court has held as under;- "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 doubts. If there is a circumstance which creates reasonable doubt in a prudent mint 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 matter of right."

16. For the above stated reasons, while respectfully relying upon the above cited case-law, we have no hesitation to hold that prosecution has failed to prove its case against the appellant beyond any shadow of reasonable doubt. Consequently, appeal is allowed, conviction and sentence awarded by the trial Court vide judgment dated 31.08.2016 is set-aside and appellant is acquitted from the charge. Appellant is in jail, he shall be released forthwith, if he is not required in any custody case.

17. This appeal was allowed after hearing parties in open Court on 03.07.2019 and these are the detailed reasons thereof. JK/N-50/Sindh Appeal allowed.