2019 PLP 88 (YLRN)

MUHAMMAD IQBAL MAHAR, J.

By this common judgment, we intend to dispose of captioned appeals, as the same have been filed against one and same judgment dated 15.10.2015 passed by learned Judge Anti-Terrorism, Court Khairpur in Special Case No.16 of 2011, arising out of Crime No.05/2011 of Police Station, Tando Masti Khan District Khairpur whereby the appellants-accused have been convicted and sentenced as under: i) For offence under section 324 read with Section 149, P.P.C. to suffer R.I. for ten years each and to pay fine of Rs.25000/- each and in case of default in payment of fine to suffer S.I. for six months each. ii) For offence under section 353 read with Section 149, P.P.C., to suffer R.I. for two years each. iii) For offence under section 337-A(i) read with Section 149, P.P.C. to suffer R.I. for two years each. iv) For offence under section 224 read with Section 149, P.P.C. to suffer R.1 for two years each and to pay fine of Rs.10,000/- each and in case of default in payment of fine to suffer further R.I. for two months each. v) For offence under section 225 read with Section 149, P.P.C. to suffer R.I. for two years each and to pay fine of Rs.10,000/- each and in case of default in payment of fine to suffer further R.I. for two months each. vi) For offence under section 7(b) ATA, 1997, to suffer R.I. for ten years each and to pay fine of Rs.25000/- each and in case of default in payment of fine to suffer S.I. for six months more. However, benefit of Section 382-B, Cr.P.C. has been extended to them and all the sentences awarded to the appellants-accused are ordered to run concurrently.

2. Precisely, prosecution case is that on 16.01.2011 complainant SIP, Ghulam Abbas Shar was present at Police Station and received spy information that notorious dacoit Mour alias Vichoon Chandio along with his companions was present at village Bitto Chandio. He conveyed such information SPO Gambat, who directed him and other Police officials to reach at the pointed place. The complainant along with his staff proceeded towards pointed place vide roznamcha entry No. 36 at 0700 hours, when they reached at Faizwah, SPO Gambat and SHOs of different Police Stations with their staff arrived there. All they the proceeded towards pointed place at about 0800 hours when they reached near village Bitto Chandio they saw absconding accused Mohammad Sharif Chandio. The police party apprehended him but the apprehended accused raised cries whereupon about 40 persons armed with Rocket Launcher, K.Ks., Guns and Rifles came out from the village. Out of them the complainant party identified 24 persons. The faces of remaining 16 persons were opened, hence they would be identified on seeing again. The accused persons tired to get Muhammad Sharif released and accused Pehalwan, Manthar and Sachal caused butt blows to ASI, Din Mohammad and got Mohammad Sharif Chandio released from the custody of complainant party/police party. The police party attempted to apprehend the accused persons but they made direct firing upon Police officials with intention to kill them. The police party also retaliated firing, such encounter continued for about 20 minutes and then the accused persons went away towards sugarcane crop. The complainant referred injured/ AS1 Din Mohammad to Government Hospital Khairpur and also collected empties from place of incident in presence of mashirs and then returned back at Police Station and lodged the FIR of the incident.

3. On completion of investigation, challan of the case was submitted before the Court. The learned trial Court after observing all formalities framed the charge against the appellants-accused at Ex.32 but they pleaded not guilty and claimed trial.

4. To substantiate the charge, prosecution examined six witnesses and then learned DDPP for the State closed the prosecution side.

5. The statements of the appellants-accused under section 342, Cr.P.C. were recorded, in which they denied the prosecution case and claimed their innocence but they did not examine themselves on oath however, one of the accused Dargahi Chandio examined his defence witness; namely, Azizullah Chandio and Mohammad Nawaz Virk and thereafter learned Defence Counsel closed the defence side of accused.

6. On evaluation of evidence, so produced by the prosecution, learned trial Court passed the impugned judgment, as stated above, which has been challenged by the appellants/accused through captioned appeals.

7. Learned Counsel for the appellants-accused contended that the impugned judgment passed learned trial Court is against the law and facts of the case; that the accused persons are shown to be armed with deadly weapons but they allegedly caused butt blows which shows that they have no intention to take, life of any of the Police officials; that there is general allegation against the accused and no specific injury has been assigned to any of them; that the medical evidence does not corroborate the ocular evidence; that nothing has been recovered from the possession of the appellants-accused. They lastly concluded that the prosecution has failed to prove its case against the appellants-accused beyond reasonable doubt, hence the appellants accused are entitled to acquittal.

8. Learned Additional Prosecutor General supported the impugned judgment and prayed for dismissal of captioned appeals.

9. We have heard learned Counsel for the appellants-accused, learned Additional Prosecutor General for the State and have perused the material available on record. It is observed that the prosecution has failed to prove that the accused had intention to commit murder of the police party for two fold reasons; (i) that as per prosecution, the accused persons had no intention to kill any of the police party but at the most to get their companion released from the custody of police party, (ii) the accused persons were allegedly armed with Rocket Launcher and K.Ks., Guns and Rifles but they caused butt blows to ASI Din Muhammad.

10. The medical evidence is inconsistent with the ocular evidence. As per prosecution case appellants-accused Pahalmran, Manthar and co-accused Sachal caused butt blows to ASI, Din Muhammad but the evidence of Medical Officer, reveals that the injured sustained one lacerated wound which has been declared as Shajjah-i-Khafifah.

11. The prosecution evidence is highly interested and consists of police personnels only and none from the village has been examined during investigation or trial, though the place of incident is situated near shops and houses and the police party proceeded towards the place of incident on advance information in order to arrest notorious dacoit Mour alias Wichoon Chandio of Larkana, for whose arrest head money was fixed by the Government. As per prosecution case, the police party arrested proclaimed offender Muhammad Sharif but the prosecution has failed to produce single document to show that he actually was argued.

12. So far as the circumstantial evidence is concerned, no doubt the police have allegedly recovered empties from the place of incident, but since no weapons have been recovered from the appellants-accused, it could not be said that they made firing or not.

13. Furthermore, as per prosecution case the accused persons and the police party were armed with automatic and semi-automatic weapons and the encounter continued for 20 minutes between them but none from either side sustained any fire arm injury in the incident nor the police mobiles were hit by the bullets and nor any mark of bullet was seen at walls of the houses or shops at the place of incident.

14. The accused persons are said to be identified by the complainant party and the police officials have disclosed the names of the accused persons with parentage and addresses but none of the PWs has explained as to how they knew the accused persons prior to the incident, hence non production of source/previous connection on record has also created serious doubt about the identification of appellants-accused.

15. Apart from the above, there are many contradictions and discrepancies in the evidence of prosecution witnesses, which have created serious doubt and on the basis whereof no conviction could be awarded but the learned trial Court did not consider the same.

16. The sequel of above discussion is that the prosecution has miserably failed to prove its case against the appellants-accused beyond any 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. In this respect, reliance can be placed upon case of Muhammad Akram v. The State reported in 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."

17. Keeping in view the above facts, circumstances of the case and case-law, benefit of doubt is extended in favour of the appellants-accused and as a consequence whereof instant appeal is allowed and appellants/accused are acquitted of the charge. They are present on bail, their bail and bonds stand cancelled and sureties discharged. SA/G-27/Sindh Appeal allowed.