2020 PLP 138 (YLRN)

MUHAMMAD SALEEM JESSAR, J.

Criminal Jail Appeal No. 191 of 2016 is directed against judgment dated 02.11.2018 passed by IV-Additional District and Sessions Judge, Karachi Central in Sessions Case No. 260 of 2015, whereby the appellant was convicted under section 397, P.P.C. and sentenced to suffer R.I. for seven years and to pay fine of Rs.25,000/- and in default of payment of fine, to undergo further S.I. for six months under section 265-H(2), Cr.P.C., whereas, Criminal Appeal No. 192 of 2016 is directed against judgment of even date passed by the same Court in Sessions Case No.146 of 2016, arising from FIR No.37/2016 registered at Police Station Khawaja Ajmer Nagri under section 23(1) of Sindh Arms Act, 2013, whereby the appellant was convicted under section 23(1)(A) of the Sindh Arms Act, 2013 and sentenced to suffer R.I. for seven years and to pay fine of Rs.25,000/ and, in case of default in payment of fine, to further undergo S.I. for six months. Benefit of section 382-B, Cr.P.C. was extended to the appellant in both the cases.

2. Facts of the case, in a nutshell, are that FIR No.36/2016 was lodged by complainant Suhail Naeem to the effect that on 07-02-2016, at about 1600 hours, at the street of House No. 4, 5-C/1, North Karachi the above named accused along with absconding accused, namely Shahroz son of Aslam, in furtherance of their common intention, came on one motorcycle being armed with deadly weapons, and attempted to rob PW Awais of his one mobile phone which he had thrown on car parked nearby on account of which the absconding accused directed the accused/appellant Hammad to fire upon PW-Awais. The accused/appellant fired upon PW-Awais which was missed. It is further stated that the witness grappled with the accused and was caught hold by PWAwais and his friend Saadi and subsequently the police party of Police Station Khawaja Ajmer Nagri, Karachi, headed by ASI Muhammad Azeem, appeared who arrested the accused/appellant. On enquiry the accused disclosed his name as Hammad son of Ameeruddin and the ASI recovered the pistol along with 02 live bullets under such memo of arrest and recovery. Subsequently the FIR was lodged at the Police Station. On account of recovery of unlicensed pistol from the appellant a separate FIR bearing No.37/2016 was registered against him under section 23(1)(A) of the Sindh Arms Act, 2013.

3. The challan was submitted before the learned Magistrate under Sections 393, 34, P.P.C. but the learned Magistrate registered the case under section 397, P.P.C. as the offence under Section 397, P.P.C. was made out. The learned Magistrate completed the proceedings under Sections 87 and 88, Cr.P.C. against absconding accused Shahroz son of Aslam and the case was sent up for trial.

4. At the time of trial the accused Hammad was supplied the requisite Statements of the witnesses and documents vide Receipt at Exh-4, dated 23.08.2016. On 08-09-2016, formal Charge was framed at Exh-5 for the offence under sections 397, 34, P.P.C. as well as a separate challan under section 23(i)(A) of Sindh Arms Act, 2013 and were read over to the accused in the Court to which he pleaded not guilty and claimed to be tried vide his Plea at Exh-5/A. Hence Prosecution was asked to adduce the evidence.

5. At the trial, Prosecution in order to prove its case against the accused, examined the complainant, namely, Suhail Naeem as PW-1 at Exh-6, he produced memo of arrest and recovery Exh-6/A; his statement under Section 154, Cr. P.C. at Exh.6/B and memo of Site at Exh-6/C. Prosecution then examined PW-2 HC Habibullah at Exh-7. He produced the entry of departure at Exh. 7/A. PW-3 Muhammad Awais was examined at Exh.8 and Investigation Officer ASI Muhammad Qadir Zafar as PW-4 at Exh-9, he produced FIR at Exh. 9/A, entry No. 23 for lodging FIR at Exh.9/B, entry of departure for inspection bearing No. 28 at Exh.9/C, entry of arrival bearing No. 37 at Exh.9/ D, letter addressed to CRO at Exh-9/E, the received copy of such Letter given to FSL In-charge at Exh-9/F and report of FSL at Exh-9/G. Thereafter, Prosecution closed its side dated vide statement dated 13-02-2017 at Exh-10.

6. The Statement of accused under Section 342, Cr.P.C. was recorded at Exh-11 wherein he has denied the prosecution case and claimed to be innocent and further alleged that he was falsely implicated in the case by police and stated that witnesses had deposed against him as they had demanded money for his release. It is further stated by him that the complainant and witnesses had deposed falsely against him and the incident had not taken place and that he did not know anything about the incident. He stated that he was arrested from his home and taken to the police station where he was kept for one day and then the complainant had come at the Police Station and he was falsely implicated in this case. The accused has declined to examine himself on oath and also did not lead any evidence in his favour.

7. After hearing learned counsel for the parties, the trial court convicted and sentenced the appellant as above. Hence instant criminal appeal.

8. I have heard Mr. Habibur Rehman Jiskani, Advocate for the appellant and Ms. Rubina Qadir, Deputy Prosecutor General, Sindh, for the State and have carefully examined the case record with their assistance.

9. Learned counsel for the appellant submitted that appellant has been falsely implicated by the complainant party in this case. He further submitted that nothing was robbed from anyone nor any one was injured in the incident and mere attempt to rob and injure has been shown for which the appellant has already suffered long incarceration. He next submitted that mobile phone allegedly thrown away by PW Awais over the parked vehicle standing nearby was neither recovered from the spot nor its description has been given by the complainant to police during investigation. Even the registration number of motorcycle allegedly used by the appellant and the absconding co-accused has not been noted down by anyone. Moreover, ASI Azeem who registered the cases against the appellant was not produced as a witness before the trial Court. He further criticized that there was joint memo of recovery and arrest which is also not permitted by law. PW Awais who is claiming to be eye-witness of the incident has not signed any memo of recovery or arrest. PW Awais, who stated that his friend Saadi was standing with him at the time of the incident, but this eye-witness was not examined before the trial Court. The alleged recovery of the weapon is also doubtful. Learned counsel also pointed out that the complainant of the FIR is, in fact, not the eye-witness of the incident. Learned counsel finally submitted that the case is full of doubts and, therefore, relying on the case of Tariq Pervez v. The State (1995 SCMR 1345), prayed that the appeals may be allowed and the appellant may be acquitted in both the cases as the second case i.e. Criminal Jail Appeal No.192 of 2019 is off shoot of the first case i.e. Cr. Jail Appeal No.191 of 2019.

10. On the other hand, learned D.P.G., while supporting the impugned judgments, submitted that the appellant was apprehended on the spot along with the weapon used in the crime. She further submits that the appellant has not taken specific plea regarding enmity between the parties or animosity with the police, therefore, the impugned judgments do not suffer from any infirmity or illegality which may require interference by this Court, hence she prays for dismissal of the appeals.

11. In the present case, the FIR was lodged by one Sohail Naeem son of Naeem Qureshi on 07.02.2016 at 1720 hours (i.e. 5.20 p.m.). Complainant Sohail Naeem in the FIR lodged by him at Police Station Khawaja Ajmer Nagri has disclosed that on 7.2.2016 he was sitting in his house while his younger brother Awais, aged about 24, years was sitting with his friend outside the home. In the meantime one motorcycle containing two boys came near to my brother and aimed pistol at him and threatened him to hand over mobile to him. Brother of the complainant threw his mobile behind a car parked nearby upon which, the dacoit fired at his brother but missed. His brother snatched the pistol from the dacoit and beat him and the commotion attracted the area people who also beat the dacoit. The accomplice of the arrested dacoit ran away on the bike. In the meantime, ASI with the help of the staff apprehended the dacoit and took him into custody and a 30 bore pistol loaded with two life rounds, were recovered from him. The accused disclosed his name as Hammad son of Ameeruddin and disclosed the name of his absconded accomplice as Shahzore son of Aslam. The complainant disclosed that as his brother Awais is perplexed therefore he appeared before the Court and lodged the FIR.

12. With regard to the complainant, PW-Awais states in his cross-examination that "Suhail resides in house No.L-4 of our area. Suhail had come after about 10/15 minutes after the incident." The complainant himself states as under in his cross-examination;_ "When I came out I saw that Awais was holding pistol and people were beating the accused. It is correct to suggest that I had not actually seen the accused coming on motorcycle and trying to commit robbery of mobile phone from PW Awais. It is correct to suggest that I had not seen as to who was driving the motorcycle and who the pillion rider was. It is correct to suggest that I had not actually seen the accused holding the pistol and being over powered by PW Awais. Voluntarily says that PW Awais had informed me when I came out on cries. I do not know who had called the police but the police had come within half an hour".

13. This clearly establishes that Sohail Naeem did not see the incident himself.

14. Apart from PW-Awais, there was another person namely Saadi, who was allegedly present at the place of occurrence when the incident took place. During his examination in chief, PW-3 stated "My friend Saadi also intervened and we managed to apprehend him." Thus, as per PW-3 Awais, this person Saadi actually took part in the incident and apprehended the accused/appellant. However, neither did he lodge the FIR nor was he joined as a witness in the case. This also deprives the prosecution of an independent witness of the case for which no explanation has been given. This causes further dent in the case of the prosecution.

15. Complainant Suhail Naeem stated in the FIR that "Today on 7.2.2016 I was existing in my home, my younger brother Awais aged about 24 years was sitting with his friend outside home in the street and was chitchatting..." In the latter part of the FIR, the complainant, while giving the reason as to why he became complainant of the FIR although he was not an eye-witness of the incident, again states "Because my brother is perplex..." Thus, at two places in the FIR he refers to PW-Awais as his brother. He was examined as PW-1 (Exh.3 at page 23 of the paper book) and during his examination in chief he stated that "one Awais and his companion were standing in the corner of street Sector 5/C/1, North Karachi. This is also a clear and unexplained contradiction that in the FIR he refers to Awais as his 'brother' while during his deposition he refers to him as 'one Awais'. Thus, the there are many contradictions in the contents of the FIR and the deposition of PW-1.

16. The most important aspect of the matter is as to why complainant Sohail Naeem came forward and lodged the FIR when he was not an eye-witness of the incident and eye-witnesses of the incident were available. The reason for the same is given by him in the FIR in the following words;_ "Because my brother is perplexed following this incident. Due to this I have deposed statement."

17. Thus, the complainant in unequivocal manner states that Awais is his brother and on account of the shock received by him due to the attempted robbery, he was unable to lodge the FIR himself and the complainant Sohail Naeem came forward to lodge the FIR on behalf of his brother. However, this is nothing but a blatant lie that he claims that PW-Awais is his brother. A perusal of the deposition sheet of PW-1, complainant Sohail Naeem reveals his paternity as "Muhammad Naeem Qureshi" while paternity of PW-Awais is shown to be "Muhammad Arif Khan" and his caste is Bangash. PW-Awais in his cross-examination states that "Suhail is my elder and I treat him as my elder brother." This clearly shows that complainant Sohail Naeem and PW-3 Awais are not related to each other as one of them i.e. complainant Sohail Naeem, is Qureshi by caste while PW-Awais is Bangash. Therefore the reason disclosed by the complainant for becoming complainant was a wrong statement by him. This creates a lot of doubt in the prosecution's case as the reason given by the complainant for becoming a complainant of the FIR does not stand the scrutiny and proves to be a lie. This again leads us to the very important question as to why Suhail Naeem came forward to become complainant if he was not an eye-witness and was not brother of PW-Awais and further poses a question as to why he made a wrong statement before the police that PW-Awais is his younger brother. What benefit he wanted to draw from this false statement.

18. There is yet another important factor which cannot be ignored. Complainant Sohail Naeem states that PW-Awais was perplexed (shocked) due to which he did not go to the Police Station to lodge the FIR; however, the FIR itself very clearly states that when Awais was asked to handover the mobile, he threw it behind the nearby parked car and thereafter, even after a shot was allegedly fired by the alleged dacoit at him, he overpowered the dacoit and snatched the pistol from him. This clearly contradicts the statement of complainant that he was perplexed (shocked). This shows that he was brave enough to attack the armed accused and even succeeded in snatching the loaded pistol from him. Even if he was shaken a bit, he could have easily rested for a while and gone to the police station to lodge the FIR himself as he was the victim of the alleged robbery and was, thus, an eye-witness. However, for unexplained reasons the normal course of action was not adopted in this case which weakens the case of the prosecution.

19. Apart from above, PW-Awais also states in his cross-examination that he and complainant Sohail Naeem went to the police station together after Maghrib to give his statement. Thus, when the eye-witness and victim of the incident was himself present at the police station then why he did not lodge the FIR himself. The reason advanced by the complainant as to why he, instead of PW-Awais, came forward for lodging the FIR, as discussed above, is not sustainable. This creates doubt in the prosecution case.

20. PW-3 Awais also states in his cross-examination that when the accused approached him with pistol, the same was not loaded and the accused loaded his pistol while he was standing near PW-Owias. It is surprising to note that PW-Awais did not attack the appellant while his pistol was not loaded, however, he allowed the appellant to load the pistol and fire on him and thereafter the appellant was attacked by PW-Awais and his friend Saadi AND was overpowered by them.

21. The above narrated illegalities and lacuna make the case of the prosecution doubtful as no plausible reasons have been furnished for such shortcomings in the case. It is well settled principle of law that the accused is entitled to be extended benefit of doubt as matter of right. Reference in this regard may be made to the case reported as Tariq Pervaiz v. The State 1995 SCMR 1345, which was relied upon by learned counsel for the appellant.

22. On 16.01.2019, when these appeals were taken up for hearing, after hearing learned counsel for the parties, the following order was passed in respect of Criminal Jail Appeal No.191 of 2019:- "Heard arguments of the parties. For the detailed reasons, recorded to be later on, the instant Criminal Jail Appeal No.191 of 2019 is hereby allowed. Consequently, the impugned judgment dated 02.11.2018, handed down by IVth Additional District and Sessions Judge Karachi Cental in Sessions Case No.260 of 2016 (re-the State v. Hammad son of Ameerudin) being outcome of FIR No.36/2016 under Section 393/34, P.P.C. of Police Station Ajmair Nagri, is hereby set-aside. Resultantly, the Appellant Hammad son of Ameeruddin is hereby acquitted of the charges. The appellant; is in custody, therefore, he shall be released forthwith, if his custody is not required by the jail authorities, in any other criminal case."

23. As far as Criminal Jail Appeal No. S-192/2019, which is outcome of FIR No.37/2016 of Police Station Khawaja Ajmair Nagri, under Section 23(i)A of Sindh Arms Act, 2013, vide Sessions Case No.146/2016 (re-the State v. Hammad) is concerned, same is offshoot of main Case/Crime No.36/2016 under Section 393/34, P.P.C. of Police Station Khawaja Ajmair Nagri, vide Sessions Case No. 260/2016 (re-The State v. Hammad), in which appellant, in view of the above discussion, has been acquitted of the charge, therefore, appellant deserves to be acquitted in instant case also.

24. It seems that the legal position in such a situation, as enunciated by the Superior Courts, is that when an accused has been acquitted in the main case, he would be entitled to be acquitted in a case which is offshoot of the main case. In this connection, reference may be made to the case of Yasir Chaudhry v. The State reported in 2012 MLD 1315, wherein it was held by Honourable Lahore High Court as under;_ "In the case reported as Manjhi v. The State (PLD 1996 Karachi 345) it has been held that when the accused has been acquitted in the main case, he would become entitled to acquittal in a case which is offshoot of the said case. Same is the position here, as the present lis is an offshoot of the main murder case, so, respectfully following the dictum laid down in the judgment supra, this petition is allowed and the application of the petitioner under section 249-A, Cr.P.C. is accepted and the petitioner is acquitted from the charge in case FIR No.17 of 2003 dated 12.1.2003 registered under section 7 of the Surrender of Illicit Arms Act No.XXI of 1991 with Police Station Civil Lines, Bahawalpur."

25. Keeping in view above legal position, it can safely be held that when the accused/appellant has been acquitted in the main case and instant case being offshoot of the said main case, the appellant deserves to be acquitted in this case too.

26. As stated above, learned Deputy Prosecutor General has also not controverted this legal position and has recorded his No Objection to the grant of instant appeal.

27. In view of the above order, the following further order was also passed in respect of Criminal Jail Appeal No. 192 of 2019, on the same date i.e. 16.1.2019;_ In view of the above, the Criminal Jail Appeal No.192/2019 being off shoot of main case is also hereby allowed. Consequently, the impugned Judgment dated 02.11.2018, handed down by IVth Additional District Sessions Judge Karachi Central in Sessions Case No.146 of 2016 (re-State v. Hammad son of Ameeruddin) being outcome of FIR No.37/2016 under Section 23(1)A of S.A.A. 2013 is hereby set-aside. Resultantly, the appellant is acquitted of the charges. The appellant is in custody, therefore, he shall be released forthwith, if his custody is not required by the jail authorities in any other criminal case.

28. Above are the reasons for my short order dated 16.1.2019. JK/H-10/Sindh Appeals accepted.