ABDUL AZIZ and 4 others vs The STATE

1. ' ABDUL RASOOL MEMON, J.---This appeal arises out of Judgment dated 21-5-2004, passed by IIIrd Additional Sessions Judge, Shikarpur in Sessions Case No.212 of 2003 outcome of Crime No.28 of 2003, Police Station Khanpur under sections 324, 353, 148, 149, P.P.C., whereby the appellants Abdul Aziz, Badaruddin, Allah Rakhio, Muhammad Ibrahim and Mehar were convicted under section 324, P.P.C. To suffer R.I. For three, years and also for section 353, P.P.C. To suffer R.I. For six months both sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. Was also extended.

2. ' Complainant Fida Hussain (SHO) recorded F.I.R. At Police Station Khanpur stating therein that on 2- 3-2013 he along with A.S.-I. Ghulam Hussain Sadhayo, HC Nawab Khan, PC Nisar Ali, PC Qalandar Bux, driver Abdul Shakoor Brohi in Govt. Mobile vide Entry No.32 left Police Station for road patrolling.

3. After patrolling on Kandhkot Shikarpur road they proceeded towards link road, leading towards village Jarwar, when they reached over the bridge .Of Chai Shakh at 3:30 hours, they found one Truck coming from the opposite direction, on seeing truck, driver made its headlight off and all of a sudden ten persons got down from the truck, out of them one was armed with K.K, four were armed with TT Pistols, three with guns and remaining two were empty handed. One was identified by the complainant as Mohabbat. The rest of the accused were seen by the complainant and witnesses could be identified if seen by them. All the accused persons on seeing police fired upon them. After exchange of firing for 15/20 minutes accused persons by getting advantage of darkness succeeded to run away leaving the truck at road. Then complainant checked the subject truck and recovered 88 bundles of electric wiring and truck was taken under section 550, Cr.P.C. And such mashirnama was prepared and case was registered to the above effect.

4. ' After completing investigation, the police submitted the charge-sheet against the accused to face their trial, to which they pleaded not guilty and claimed for trial.

5. ' In order to prove the case, the prosecution examined A.S.-I. Ghulam Hussain Sadhayo, who is mashir and Investigation Officer, S.H.O. Fida Hussain Lahori, complainant and P.W.3 Ghulam Hyder, mashir.

6. ' After closing of evidence, the statements of the accused were recorded under section 342, Cr.P.C.

7. In their statements before the trial Court, they claimed innocence and false implication in this case.

8. ' As per prosecution case ten persons got down from the truck out of them, one was armed with K.K, four with TT Pistols and three with guns and two were empty-handed. It is also the case of the prosecution that identification of the accused by the prosecution witnesses was made on the light of the vehicle while they,. Got down from the truck therefore, eyewitnesses had momentary glimpse of the accused during odd hours of the night at 0330 hours. As per prosecution case, the police party left Police Station Khanpur vide Entry No.32 for patrolling. It is also case of the prosecution that accused were arrested on 24-3-2003 by A.S.-I. Ghulam Hussain Sadhayo and were produced before Magistrate for identification parade.

9. ' A.S.-I. Ghulam Hussain, P.W.1 in his deposition has stated that he was one of the member of the patrolling party and had acted mashir of place of wardat and he has produced mashirnama of wardat at Exh-10-A, which indicates that only recovery of truck along with 88 bundles of electric wires have been mentioned in the mashimama. Admittedly firing continued for 15/20 minutes and the accused allegedly were armed with K.K, guns and Pistols and the police was also having sophisticated weapons and they retaliated and made firing but not a single empty of bullet or cartridge has been recovered from the place of wardat to substantiate the allegation of the firing with intention to commit Qatl-e-Amd of the police party by accused persons. So also neither the accused nor police officials sustained scratch in this incident. Moreover, it is the case of the prosecution that the P.W. Fida Hussain Lahori, S.H.O. Police Station Khanpur has made identification of the accused before the Magistrate. It is very surprising that as per prosecution case the accused namely Aziz, Badaruddin, Allah Rakhio alias Rawal, Ibraheem and Mehar were arrested on 24-3- 2003 by A.S.-I. Ghulam Hussain Sadhayo' and kept them at Police Station and produced them before the Magistrate on 25-3-2003, where P.W. Fida Hussain Lahori, the S.H.O. Made their identification. In his cross-examination he states that he had never seen the accused prior to the identification parade and so also P.W. Fida Hussain states that he (S.H.O. Fida Hussain Lahori) has not seen accused prior to the identification held before the Magistrate but his statement is falsified by the mashir of identification A.S.-I. Ghulam Hussain Sadhayo who is also mashir of arrest of the accused. He has stated that Fida Hussain Lahori, S.H.O. Has arrested the accused and he along with S.H.O. And accused came in the same mobile in the Court for holding identification parade. In view of above statement of mashir of identification and arrest that the S.H.O. Fida Hussain not only arrested the said accused but took them along with accused before Magistrate make the very identification parade doubtful and is of no use. Moreover identification parade is not only delayed by twenty three days of the incident but ratio of dummies has also not been maintained because four accused have been mixed up with ten dummies. Therefore, on this score too the identification parade is of no value.

10. ' In view of the above circumstances, I am of the opinion that the prosecution case suffers from doubt and it is well-settled principal of law that if the accused brings on record a slightest doubt regarding his involvement in the commission of the offence then its benefit should be given to him not as a matter of grace or concession but as a matter of right. In this context reliance can be placed on the case reported as 1985 SCM R 1345.

11. ' In view of above, by extending benefit of doubt to accused, I am of the view that the prosecution has miserably failed to prove its case beyond shadow of reasonable doubt against the present appellants accused. Consequently, the appeal filed by the appellants is accepted and the impugned judgment is set aside. Resultantly, the appellants/accused are acquitted after by extending benefit of doubt. They are present on bail, their bail bond stand cancelled.