BILAWAL Versus State
KHADIM HUSSAIN M. SHAIKH, J.--- Through the captioned criminal appeal, appellant Bilawal Babar has called in question judgment dated 09.04.2020, passed by the learned 1st. Assistant Sessions Judge, Jacobabad in offshoot case namely Sessions Case No.452 of 2019 re: State v. Bilawal Babar, emanating from Crime No. 60 of 2019 for offence under sections 23(i)-A, 25, Sindh Arms Act, 2013, registered at P.S. Garhi Khairo of main Sessions Case No. 50 of 2019, based on FIR No. 58 of 2019, registered at PS Garhi Khairo for offences under sections 324, 353, 412 and 34, P.P.C., whereby the appellant has been convicted for offence punishable under section 231(a), Sindh Arms Act, 2013 and sentenced to suffer rigorous imprisonment for five (05) years and to pay fine of Rs.10,000/- and in case of default in payment thereof to further suffer simple imprisonment for fifteen (15) days, extending him benefit of the section 382-B, Cr.P.C.
2. Briefly the facts of the prosecution case are that accused Bilawal, having been allegedly found in possession of unlicensed T.T pistol of .30 bore along with empty magazine was arrested under mashirnama in presence of mashirs PC Muhammad Nawaz and PC Muneer Ahmed and then arrested accused and property were brought at PS where the subject FIR was lodged and after usual investigation the accused '(the appellant)' was sent up with the challan to face his trial.
3. After completing all the formalities, a formal charge was framed against the appellant at Ex.2, to which, he pleaded not guilty and claimed his trial.
4. At the trial, prosecution examined three PWs namely Complainant ASI Mumtaz Ali at Ex.3; PW-2 mashir PC Muhammad Nawaz at Ex 4: PW-3 ASI Abdul Sattar I.O. of the case at Ex.05; and produced FIR attested copy of memo of arrest and recovery, Roznamcha entry No. 7 and FSL report at Ex.3/A, 3/B, 3/C and 5/A respectively. Thereafter prosecution closed its side vide statement at Ex.06. Then statement of the appellant under section 342, Cr.P.C. was recorded at Ex.07, wherein he denying all the allegations, professed his innocence and prayed for justice. He, however, neither examined himself on Oath nor did he examine any person as his defence witness.
5. At the conclusion of the trial, the learned trial Court convicted and sentenced the appellant as discussed in paragraph-1 supra vide judgment dated 09.04.2020. The appellant, having felt aggrieved by the said judgment, has preferred this appeal.
6. The learned counsel for the appellant has mainly contended that the appellant is innocent and has been falsely implicated in this offshoot case to strengthen the main sessions case based on Crime No. 58 of 2019 for offence under sections 324, 353, 412 and 34, P.P.C., registered at PS Garhi Khairo, wherein an encounter was shown to have taken place between the accused numbering four and the police party comprising of five personnel, which lasted for 10 minutes, but nobody from either side had even sustained scratch; that there are material and glaring contradictions and several material infirmities in the prosecution case: and, that the prosecution has failed to prove its case against the appellant beyond a reasonable doubt. The learned counsel prays for acquittal of the appellant.
7. Learned D.P.G has contended that the prosecution by examining three PWs namely Complainant ASI Mumtaz Ahmed, mashir PC Muhammad Nawaz and ASI Abdul Sattar the I.O. of the case and producing FIR, mashirnama of arrest and recovery and FSL report has proved its case against the appellant beyond a reasonable doubt; that PWs have supported the prosecution case; and, that recovery of unlicensed weapon namely T.T pistol was effected from the appellant. Learned D.P.G. prays for dismissal of this appeal.
8. I have considered the submissions of learned counsel for the appellant and learned D.P.G and have gone through the material brought on record with the assistance of learned D.P.G.
9. From a perusal of the record, it would be seen that this is an offshoot case of the aforementioned main sessions case based on Crime No.58 of 2019, which involved the allegations against the appellant and co-accused Saeed Ahmed along with two other culprits, who allegedly succeeded in making their escape good, were of ineffective firing, for, despite extensive firing between the police party comprising of five personnel including the complainant and accused numbering four, which lasted for 10 minutes, nobody from the, either side had admittedly sustained even scratch in the alleged firing; that there were material contradictions, infirmities and admissions of the prosecution witnesses during the trial adverse to the prosecution, which rendered the prosecution case highly doubtful, therefore, the appellant Bilawal and his co-accused Saeed Ahmed in Criminal Appeals Nos. S-32 and 40 of 2020, arising out of the aforementioned main Sessions Cases, have been acquitted of the charge by this Court just before taking up this matter; no independent person was associated with the alleged recovery proceedings despite the fact that the police party on a tip off went to the pointed place and from the place of information to the pointed place, namely Main Bazar Panj Guli Chowk, Wagon Stand and Begari Pul, all are thickly populated areas; PW-1 Complainant ASI Mumtaz Ahmed in his cross-examination has stated that "we left police station and reached at Begari Pul viz Main Bazar, Panj Guli Chowk. Wagon Stand then Begari Pul; We did not either stop or conduct checking in the way, I did not associate private mashir; the place of vardhat i.e. Shahdadkot road leads to Garhi Khairo and Usta Muhammad; our police mobile was parked at eastern side of place of vardhat; shahdadkot road leads from south to north and whereas PW-2 mashir PC Muhammad Nawaz Brohi in his cross-examination has stated that "we patrolled via Panj Guli Chowk, Wagon Stand then Begari Pul; we parked our police mobile in the western side of the road and we were standing in the northern side of the road; PW-1 complainant ASI Mumtaz Ahmed has stated that "I do not remember the names of police officers, who were deployed at the eastern or western side of the road; PW-1 complainant ASI Mumtaz Ali has stated that "I apprehended the accused Bilawal while PC Muhammad Nawaz apprehended accused Saeed and whereas PW-2 mashir PC Muhammad Nawaz has stated that "I apprehended accused Bilawal while the complainant apprehended accused Saeed; PW-1 Complainant Mumtaz Ahmed has stated that "the encounter occurred at the distance of 10/15 paces; and, whereas PW-2 mashir Muhammad Nawaz has stated that "the encounter took place at the distance of 40/50 paces"; PW-3 I.O. Abdul Sattar Mirali in his cross-examination has stated that "the case property was dispatched to FSL through PC Azhar Shah, who has not been examined by the prosecution and whereas FSL report produced at Ex.5/A contains a note that "all above mentioned weapons and crime empties were brought and signed by ASI Mumtaz Ali of PS Garhi Khairo, and it does not show that the said case property was delivered by PC Azhar Shah in the office of FSL; ASI Mumtaz Ahmed, who is complainant in this case and was examined at Ex.03 did not utter a single word about taking the above case property by him to Forensic Science Laboratory; the FSL report Ex.5/A further reveals that Twelve .30 bore crime empties allegedly secured from the place of vardhat, marked as "C4 to C15" were not found fired from .30 bore pistol allegedly, recovered from accused Bilawal at the spot. Under these circumstances. I am of the considered view that the prosecution has failed to prove this case against the appellant beyond a reasonable doubt. The learned trial Court while passing the impugned judgment convicting and sentencing the appellant had over looked the aforesaid material contradictions, discrepancies and admissions adverse to the prosecution case which did go to the root of the prosecution case rendering it doubtful, therefore, the impugned judgment, passed by the learned trial Court, which suffers from misreading and non-reading of the evidence, and the conviction and sentence awarded to the appellant vide impugned judgment are not sustainable. And, thus this criminal appeal deserves to be allowed. These are the reasons of my short order announced by me on 11.05.2020, whereby this appeal was allowed and conviction and sentence awarded to the appellant vide impugned judgment were set aside and the appellant was acquitted of the charge and was directed to be released forthwith, if his custody was not required in any other case.
JK/B-11/Sindh Appeal allowed.