ALTAF HUSSAIN Versus State
MUHAMMAD SALEEM JESSAR, J.--- By this common judgment I propose to dispose of aforementioned three Criminal Appeals, filed by appellants Saindad and Altaf Hussain, as the cases are outcome of one and same incident, hence common question of law and these appeals are outcome of same series of crime. Criminal Appeal No.S-16 of 2017, jointly filed by appellants Saindad and Altaf Hussain, has been directed against judgment dated 11.01.2017, penned down by learned 1st. Additional Sessions Judge, Mirpurkhas in Sessions Case No.208 of 2015 re: The State v. Saindad and another, being outcome of Crime No.12/2015 of Police Station Khan, under sections 397, 337-D, 34, P.P.C.; whereas Criminal Appeal No. S-15/2017 has been filed by appellant Altaf Hussain against the judgment dated 11.01.2017, handed down by learned 1st. Additional Sessions Judge, Mirpurkhas in Sessions Case No.114/2015 re: The State v. Altaf Hussain, which is outcome of Crime No.17/2015 of Police Station Khan, under section 23(1)(a), Sindh Arms Control Act, 2013 and Criminal Appeal No. S-17/2017 has been filed by appellant Saindad against the judgment dated 11.01.2017, inked down by learned 1st. Additional Sessions Judge, Mirpurkhas in Sessions Case No. 115/2015 re: The State v. Saindad, which is outcome of Crime No.16/2015 of Police Station Khan, under section 23(1)(a) Sindh Arms Act, 2013.
2. The crux of the prosecution case are that complainant Muhammad Umer lodged FIR at police station Khan on 28-02-2015 at 2030 hours, alleging therein that he is Zamindar and used to cultivate his land himself. His cousin namely Noor Muhammad is also residing with him in same village. On 28-02-2015, he along with Muhammad Ameen was returning back to his village on tractor, at that time they saw said Noor Muhammad was also returning to their village on a motorcycle. When they reached near Karo Water Deh-90, three persons with open faces while riding over one motorcycle crossed them in high-speed and after reaching in front of motorcycle of Noor Muhammad gave him signal to stop his motorcycle but he did not stop his motorcycle, on which the person sitting on back seat took out pistol and made straight fire with intent to kill, upon Noor Muhammad, which landed on left part and chest of Noor Muhammad, who while raising cry fell down. Thereafter, the culprits robbed the motorcycle of Noor Muhammad and went-away towards Mori. Then complainant called the co-villagers namely, Soomar and Ali Muhammad on mobile call, who arrived there and then they took injured Noor Muhammad to P.S, obtained letter for his treatment from police and then went to Civil Hospital Mirpurkhas, where Dr. after providing first aid to injured referred him to LMCH, Hyderabad. Thereafter the complainant went to P.S and lodged the report."
3. After registration of FIR, the investigation was carried out whereby the appellants were arrested by police on 09.03.2015 on which date the crime weapons were also shown to have been recovered from them for which separate FIRs being Crime Nos.16 of 2015 (Cr. Appeal No.S-17 of 2017) and 17 of 2015 (Cr. Appeal No.S-15 of 2017) were also got registered by the police. After completion of investigation challan of all the cases were filed before the Court concerned and then papers were sent to Court of Sessions wherefrom these cases were assigned to 1st. Additional Session Judge, Mirpurkhas (trial Court). The trial Court after taking cognizance framed charge against the appellants on 26.08.2015 vide Ex.3 to which they pleaded not guilty and claimed to be tried vide their pleas Ex.3-A and 3-B, respectively. One of the co-accused namely Fida Hussain was not arrested and was shown in challan as absconder; however, during preliminary proceedings it was informed to trial Court that he has expired on 20.04.2015, therefore, proceedings against him were abated vide order Ex.01.
4. Thereafter, trial of the case was proceeded with before the trial Court where after recording evidence of prosecution witnesses the accused/appellants were examined under section 342, Cr.P.C. vide Ex.12 and 13. In their respective statement, appellants have examined themselves on oath at Ex.14 and 15 and also produced / examined D.W Sher Ali in their defense at Ex.16. Then, after hearing the parties counsel, trial Court vide impugned judgment finding the appellants guilty of the charge convicted and sentenced them as mentioned in concluding para of same which is as under:-
Criminal Appeal No. S-16 of 2017.
Saindad and Altaf were convicted under section-265-H(2) Cr.P.C. and awarded sentence as under:-
1 For the offence punishable under sections-397, 34, P.P.C. to suffer R.I for seven (07) years each and pay Rs.50,000/- each as fine and in case of non-payment of fine amount, further suffer S.I for three (03) months each more.
2. For the offence punishable under sections-337-D, 34, P.P.C. to suffer R.I for Five (05) years each as Tazir and pay Arsh amount each equal to 1/3rd amount of the Diyat amount prevailing at present to the victim/injured Noor Muhammad.
Both the accused persons are also given the benefit of section 382-B, Cr.P.C. and the above sentences shall also run concurrently.
Criminal Appeal No. S-15 of 2017.
Appellant Altaf was convicted under section 265-H(2) Cr.P.C. and awarded sentence under section 23(1)(a), Sindh Arms Control Act, 2013 to suffer R.I for three (03) years and fine of Rs.20,000/-. In case of non-payment of fine amount, he was ordered to suffer S.I for two (02) months more. However, he was extended benefit of section 382-B, Cr.P.C.
Criminal Appeal No. S-17 of 2017.
Appellant Saindad was convicted under section 265-H(2), Cr.P.C. and awarded sentence under section 23(1)(a), Sindh Arms Act, 2013 to suffer R.I for three (03) years and fine of Rs.20,000/-. In case of non-payment of fine amount, he was ordered to suffer S.I for two (02) months more. However, he was extended benefit of section 382-B, Cr.P.C.
5. Learned counsel for appellant submits that initially FIR was got registered in this case against unknown persons and after about 09 days of the incident, appellants were shown to have been arrested by the police along with the alleged crime weapons; however, no source of identification was shown nor any incriminating article relating to the incident has been recovered from their possession even further statement of complainant was not recorded by police through which it could be deduced that the appellants were the real culprits. In support of his contentions he placed reliance upon the cases of Azhar Mehmood and others v. The State (2017 SCMR 135) and Ghulam Qadir and 2 others v. The State (2008 SCMR 1221). He further submits that since the appellants were not named in the FIR nor were put to identification parade, therefore, their identity is questionable more particularly, when there is no source of identification is disclosed by the prosecution. In support of his contention he places reliance upon the case of Shafqat v. The State (2013 YLR 1311). He next submits that as per evidence of the complainant, he was proceeding on a tractor and alleged injured Noor Muhammad was driving his motorcycle ahead their tractor at a distance of about half kilometer hence in such eventuality the identification of the appellants by the complainant cannot be visualized. He has also focused upon the Medico-Legal evidence and submits that it being contradicted on material points is not free from doubt, therefore, it cannot be relied upon in toto to maintain the conviction against appellants. In support of his contentions he places reliance upon the case of Inayatullah and 3 others v. The State (2014 PCr.LJ 594). He further submits that two persons namely Sikandar and Ali Qaimkhani were also arrested by the police during investigation; however, later both said persons were freed they being influential having political sources were not arrayed as accused instead present appellants who have no nexus with the alleged crime have been falsely implicated by the police. He further submits that complainant party had not disclosed the names as well identity of the appellants; however, police arrayed them in this case as accused as per their own. However, such dilemma has not been thrashed out during investigation nor by trial Court even has not been explained by the prosecution. He also submits that alleged crime weapons shown to have been recovered from the possession of appellants on 09.03.2015 were sent to the Laboratory for their opinion whether they were functioning or otherwise on 24.03.2015 with a delay of 16 days and no explanation has been furnished by prosecution for keeping the same in their custody. In these circumstances, prosecution case has become highly doubtful as it has failed to bring the charge at home. He, therefore, prays for grant of instant appeals and acquittal of the appellants.
6. On other hand, learned A.P.G opposes the appeals; however, she could not controvert the factual controversies as well major discrepancies in the prosecution evidence. She further admitted very candidly that there should have been identification of the appellant which has not been done and further adds that complainant and P.Ws have also not named any of the appellant in their respective 161, Cr.P.C. statement.
7. I have heard learned counsel for the appellants as well learned A.P.G appearing for the State and perused the record.
8. It is admitted position of record that FIR was got registered by the complainant against unknown persons and even descriptions of the said alleged culprits with their body structure has not been mentioned through which it could be deduced that appellants were actual offenders. It is astonishing to note that after about 09 days of the incident police apprehended the appellants along with alleged crime weapons without any corroboration that the appellants were the persons who allegedly committed the offence and caused injuries to injured Noor Muhammad on the day of incident. Mere recovery of pistols from their possession was not sufficient to hold that the appellants were the persons who committed alleged offence. More particularly, when nothing was robbed from the complainant, though the motorcycle riding by injured Noor Muhammad, allegedly robbed away from him, was not recovered from their possession which may connect them with the commission of alleged offence.
9. Moreover, the statements of P.Ws as well injured were recorded by police on 16.03.2015 after a delay of 07 days which has caused sufficient / serious doubt upon the veracity of instant case, hence entitles the appellants with their acquittal. In this context, reference can be had from the case of Ayaz Ali and 2 others v. The State (2000 PCr.LJ 1031), wherein while dealing with the identical issue, this Court has held as under:-
"I have gone through the material placed with the case. It is very strange that the incident has reportedly taken place on 17-2- 2000 but the FIR was filed belatedly on 20-2-2000 whereas the 161, Cr.P.C. statements of the witnesses were recorded by the police on 10-3-2000 with a considerable delay without any explanation forthcoming from the prosecution side. The delay so occasioned by the police in discharging their duties casts serious doubts on the veracity of the prosecution evidence."
10. In the present case, there are many circumstances which create doubts in the prosecution case. Even an accused cannot be deprived of benefit of doubt merely because there is only one circumstance which creates doubt in the prosecution story. In the case reported as Tariq Pervaiz v. The State (1995 SCMR 1345) the Honourable Supreme Court held as under:-
"The concept of benefit of doubt to an accused person 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 mind 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 a matter of right."
11. Needless to emphasize that it is a well settled principle of law that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty is cast upon the accused to prove his innocence. It has also been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In the case reported as Wazir Muhammad v. The State (1992 SCMR 1134) it was held by Honourable Supreme Court as under:
"In the criminal trial whereas it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution."
12. In view of above discussion, it seems that the Court below has not applied its judicious mind to the factual as well as legal aspects of the case and has ignored the aforesaid discrepancies/legal flaws in prosecution case, hence the impugned judgment being not sustainable in law is liable to be set aside and the accused / applicants are entitled to be acquitted from all charges. Order accordingly.
13. So far as Criminal Appeals Nos.15 and 17 of 2017 whereby the judgments of the Trial Court, convicting accused/appellants Altaf and Saindad for offence punishable under section 23(1) of Sindh Arms Act, 2013, have been challenged, suffice it to observe that as the main case has not been proved by the prosecution, as discussed above, the offshobt of the main cases also fail and are liable to meet the same fate as meted out to the main case. In this connection reference may be made to the case reported as 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.XX1 of 1991 with Police Station Civil Lines, Bahawalpur.
14. Accordingly, all these appeals are allowed and the impugned judgments dated 11.01.2017, handed down by learned I-Additional Sessions Judge, Mirpurkhas in Sessions Case Nos.208 of 2015 re: The State v. Saindad and another (Crime No.12/2015 of Police Station Khan, under sections 397, 337-D, 34, P.P.C.); Sessions Case No.114/2015 re: The State v. Altaf Hussain (Crime No.17/2015 of Police Station Khan, under section 23(1)(a), Sindh Arms Act, 2013) and Sessions Case No.115/2015 re: The State v. Saindad (Crime No.16/2015 of Police Station Khan, under section 23(1)(a), Sindh Arms Act, 2013), respectively, are set aside. Consequently, the appellants in all these cases are acquitted of the charges. Appellant Altaf is present before the Court on bail. His bail bonds stand cancelled and surety furnished by him is also discharged. As far as appellant Saindad, he too was granted bail by this Court and after furnishing surety he was also released on bail in the present cases(s); however, since as reported he is in custody in connection with some other case and confined at District Jail, Sanghar, therefore, he shall also be released forthwith only in present case(s), if he is not required in any other custody case.
SA/A-133/Sindh Appeals allowed.