2020 P Cr (PLP)

MUHAMMAD IQBAL MAHAR, J.

Appellant Rajib Pitafi has assailed the judgment dated 09.02.2016, passed by learned Judge, Anti-Terrorism Court, Sukkur in Special Cases Nos. 01, 02 and 03 of 2011, arising out of FIR Nos. 08, 15 and 16 of 2011 for offence under sections 302, 324, 353, 34, P.P.C. and 13(e), Arms Ordinance, registered at Police Station, Mirpur Mathelo, whereby he has been convicted as under: For offence under section 302(b), P.P.C., appellant Rajib Pitafi was convicted and sentenced to be hanged by his neck till his death and to pay the compensation amount of Rs. 100,000/-to the legal heirs of deceased as required under section 544-A, Cr.P.C. and in case of default in payment of fine, to suffer S.I for six months' more. For offence under section 324, P.P.C. read with section 34, P.P.C., appellant was convicted and sentenced to suffer R.I for five years and also to pay fine of Rs.10,000/-, and in case of default in payment of fine to suffer S.I for three months' more. For offence under section 353, P.P.C. read with section 34, P.P.C., to suffer R.I for two years and to pay fine of Rs.3000/- and in case of default of payment of fine, to suffer S.I for two months' more. For offence under section 13(e), Arms Ordinance, to suffer R.I. for three years and to pay fine of Rs.5000/- and in case of default in payment of fine to suffer S.I for one month more. For offence under section 7(a), A.T.A., 1997, to suffer R.I for life and to pay fine of 50,000/ and in case of default of payment of fine to suffer S.I for six months more. For offence under section 7(h), A.T.A., 1997, to suffer R.I for five years and to pay fine of Rs.5000/- and in case of failure in payment of fine to suffer S.I for four months more.

2. Precisely, prosecution case is that on 11.01.2011 ASI Ghulam Shabir along with SIP Abdul Sattar Bhatti was present on duty at Police Station, where they received information through telephone that accused had entered into the house of one Dileep Kumar, situated near Primary School, for committing robbery. On such information complainant along with SIP Abdul Sattar Bhatti, HC Sahibdino, PC Mohammad Shahban, PC Noor Hassan and PC Inayatullah duly armed left Police Station vide entry No.17 and proceeded towards the pointed place by foot. At about 1245 hours, they reached at the house of Dileep Kumar and saw two persons one armed with country made pistol and other with pistol. The accused seeing the police party fired upon them with intention to commit their murder and went towards Chandni chowk. SIP Abdul Sattar Bhatti reached near the accused who was armed with pistol but he fired upon SIP which hit him and fell down. In the meantime WHC Safdar Ali and WPC Waseem Ahmed reached there. The complainant directed them to shift the injured to hospital and himself chased the accused and when they reached near Ara-Machine near by-pass PC Muhammad Shahban went ahead to arrest the accused who was armed with country made pistol but he fired upon PC which hit him and he fell down. In the meantime SHO Mukhtiar Mazari of Police Station, Mirpur Mathelo reached there, on his direction, the complainant shifted injured PC Muhammad Shahban to hospital and found SIP Abdul Sattar Bhatti lying dead in the hospital. Thereafter the complainant went at Police Station and lodged the FIR.

3. It is further case of prosecution that on 20.01.2011 the appellant while under arrest in crime No.08/2011 voluntarily led the Police party and produced an unlicensed .30 bore pistol along with magazine containing four live bullets from sugarcane crop of Shahbaz Ali Shah, thereafter the complainant lodged another FIR.

4. After usual investigation, the challan of the case was submitted before the Court having jurisdiction. The learned trial Court framed combined charge against the appellant and co-accused Ali Muhammad at Ex.4, to which they pleaded not guilty and claimed trial.

5. At trial, prosecution examined PW-1 complainant ASI Ghulam Shabir at Ex.08, who produced FIR of crime No.08/ 2011 at Ex.8-A, PW-2 ASI Sahib Dino at Ex.9, PW-3 PC Muhammad Shahban at Ex.10, PW-4 Dr. Shabir Ahmed at Ex.11, who produced postmortem report of deceased SIP Abdul Sattar, medical certificate of injured PC Muhammad Shahban, police letter and inquest report at Ex.11-A to 11- D, PW-5 Inspector Rana Asif at Ex.12, who produced memo of arrest of accused Rajib and Ali Muhammad Pitafi, memo of recovery of crime weapon from accused Rajib and memo of recovery of crime weapon from accused Ali Muhammad at Ex.12-A to 12-C, PW-6 Inspector Mukhtiar Ahmed at Ex.13, who produced memo of arrest of accused Riaz and entry it Ex.13-A to 13-B, PW-7 ASI Qasim Ali at Ex.14, who produced danistnama of deceased, memo of inspection of dead body of deceased, memo of injuries of injured PC Muhammad Shahban, memo of inspection of place of incident, memo of securing last worn clothes of deceased and receipt of handing over the dead body at Ex.14-A to 14-F, PW-08 ASI Fateh Ali at Ex.15, PW-09 Inspector Karim Bux at Ex.16, who produced order for constitution of special team dated 12.01.2011, sketch of place of incident, report of chemical examiner, FIR of crime No.15/2011 of Police Station Mirpur Mathelo, entry No.22, FIR of crime No.16/2011 Police Station Mirpur Mathelo, entry No.31, three letters for sending recovered weapons to the ballistic expert and reports of ballistic expert at Ex. 16-A to 16-K. Thereafter, learned ADPP closed the side of prosecution vide statement at Ex.17.

6. After closure of prosecution side, statements of appellant Rajib and acquitted accused Ali Muhammad were recorded under section 342, Cr.P.C. at Exs.18 and 19, wherein they denied the prosecution allegation and claimed their innocence. Appellant Rajib examined himself on oath at Ex.20 and produced Photostat copy of judgment, he also examined DW Shafi Muhammad at Ex.21. Thereafter learned counsel for the appellant closed defence side vide his statement at Ex.22.

7. Learned Judge, ATA Court Sukkur on evaluation of evidence, so produced by the prosecution, convicted and sentenced the appellant, as stated above while acquitted co-accused Ali Muhammad.

8. It is inter alia contended by learned counsel for the appellant that the appellant has falsely been implicated in this case with mala fide intention; that the names and descriptions of the accused persons do not transpire in FIR; that the alleged incident has taken place in thickly populated area but no person from the locality has been examined; that after arrest, the appellant was not put to identification parade; that the case of prosecution is that co-accused Riaz disclosed the name of appellant and thereafter PWs Sahib Dino and Muhammad Shahban disclosed the names of accused in their 161, Cr.P.C. statements; that co-accused Ali Muhammad has been acquitted by the trial Court, hence the appellant is also entitled for acquittal; that the appellant has been acquitted from the case of robbery committed from the house of Dileep Kumar; that the appellant has also been acquitted from the case of police encounter; that there are contradictions in evidence of prosecution witnesses, which have not been considered by learned trial Court. By contending so he prayed for acquittal of the appellant. In support of his arguments learned counsel relied upon case of Farman Ali v. The State (1997 SCMR 971) and Nazakat Ali v. The State (2013 YLR 2411).

9. Conversely, learned Additional P.G supported the impugned judgment and further submitted that the prosecution has proved its case against the appellant beyond shadow of doubt, therefore he sought for dismissal of captioned appeals.

10. We have considered the arguments advanced by learned counsel for the appellants, learned Additional P.G for the State and have examined the record carefully. Admittedly neither the names and descriptions of accused are transpired in the FIR nor the appellant has been put to identification parade before any Magistrate. Firstly, the name of the accused including appellant were disclosed by co-accused Riaz who was arrested at spot in injured condition during police encounter but under Article 38 of Qanun-e-Shahadat Order, 1984, admission of an accused before police cannot be used as evidence against the co-accused. In case of Farman Ali v. The State supra the honourable Supreme Court has held that: "Holding of identification test becomes necessary in cases, where names of the culprits are not given in the FIR. Holding of such test is a check against false implication and it is good piece of evidence against the genuine culprits." Secondly, the names of the accused persons were disclosed by PWs ASI Sahib Dino and injured PC Muhammad Shahban. As per prosecution case injured PC Muhammad Shahban was shifted to hospital by complainant ASI Ghulam Shabir, and ASI Sahib Dino was also with complainant and injured in hospital but they did not disclose the names of accused to complainant. PW Sahib Dino in his evidence deposed that "When we reached in the hospital ASI Ghulam Shabir, PC Muhammad Shahban were already present there. I had not disclosed the names of accused to complainant in the hospital." 'In such circumstances, false implication of the accused after the lodgment of FIR with consultation can not be ruled out.

11. As per prosecution case, one empty of .30 bore was recovered from the place of incident on the very day, i.e. 11.01.2011 and the recovery of alleged pistol was shown on 20.01.2011 but the empty and pistol were delivered in the office of expert on 04.02.2011. There is no explanation for such delay in sending the property. In case of Nazakat Ali v. The State supra the crime empties and rifle recovered on the pointation of accused, were kept together at the police station and were deposited in the office of Forensic Science Laboratory after 19 days. The said recovery and report were not considered as corroborative piece of evidence against the appellant.

12. Furthermore, no questions regarding medical evidence and examination report of weapon were put to appellant in his statement recorded under section 342, Cr.P.C, hence same piece of evidence can not be used against him. In case of Qaddan and others v. The State reported in 2017 SCMR 148, the honourable Supreme Court has held as under: "The law is settled that a piece of evidence not put to an accused person at the time of recording of his statement under section 342, Cr.P.C. cannot be considered against him."

13. There are contradictions in the evidence of prosecution witnesses. As per FIR and evidence of complainant, the complainant party reached near the house of Dileep Kumar saw two accused persons, who fired upon the police party but PW ASI Sahib Dino and Muhammad Shahban disclosed the names of three accused persons. The complainant deposed that injured SIP Abdul Sattar was sent to hospital through WHC Safdar Ali and WPC Waseem but the medical officer deposed that injured Abdul Sattar was brought by PC Ghulam Rasool, said Ghulam Rasool was not member of the police party. Injured Muhammad Shahban has arrived at hospital at 1.15 p.m. and the FIR was lodged at 1400 hours but letter bears Police Docket No. as Cr.8/2011 dated 11.01.2011. The incident has allegedly taken place in thickly populated area but none from the locality has been examined by the prosecution in support the evidence of police officials.

14. Furthermore, on similar allegation co-accused Ali Muhammad has been acquitted by trial Court while disbelieving the prosecution evidence, hence it can not be relied upon against the appellant without independent corroboration which is lacking in the case. In case of Muhammad Asif v. The State reported in 2017 SCMR 486 the Honourable Supreme Court has held as under: "It is a trite principle of law and justice that once prosecution witnesses are disbelieved with respect to a co-accused then, they can not 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."

15. Apart from above, the appellant has been acquitted from the cases of robbery, allegedly committed in the house of Dileep Kumar, and police encounter, wherein co-accused Riaz was killed.

16. For what has been discussed above we have reached at the conclusion that the prosecution has failed to prove its case against the appellant/accused beyond reasonable doubt and it needs no reiteration that for the purpose of giving benefit of doubt to an accused person, more than one circumstance is not required, a single circumstance creating reasonable doubt about the guilt of the accused, makes him entitled to such benefit. In this respect reliance can be placed upon case of Mohammad Zaman v. The State (2014 SCMR 749).

17. Accordingly while extending benefit of doubt to the appellant the captioned appeals were allowed, impugned judgment dated 09.02.2016, passed by learned Judge, Anti-Terrorism Court, Sukkur was set-aside, the appellant was acquitted of the charge and reference was answered in negative. The appellant was in jail he was directed to be released forthwith if not required in any other case by short order 06.03/ 2019 and above are the reasons for the same. JK/R-18/Sindh Appeals allowed.