BILAWAL Versus State
KHADIM HUSSAIN M. SHAIKH, J.--- This judgment will dispose of both the captioned criminal appeals directed against the judgment dated 09.04.2020, passed by the learned Assistant Sessions Judge-I, Jacobabad, in Sessions Case No.450 of 2019, re-The State v. Saeed Ahmed and another, emanating from Crime No.58 of 2019, under Sections 324, 353, 412, 34, P.P.C., registered at Police Station Garhi Khairo, whereby appellants Saeed Ahmed son of Gahi Khan Kakepoto Abro and Bilawal son of Khan Mohammad Babar have been convicted for offence under Sections 353/34, P.P.C. and sentenced to suffer R.I. for one year; for offence under section 324, P.P.C. read with Section 34 PPC to suffer R.I. for seven (07) years and to pay fine of Rs.20,000/- each, in default in payment thereof to suffer S.I. for one month more; and, for offence under Section 412, P.P.C. read with Section 34, P.P.C. to suffer R.I. for seven (07) years and to pay fine of Rs.20,000/-, in default in payment thereof to suffer S.I. for one month more, extending them benefit of Section 382-B, Cr.P.C. All the above sentences awarded to the appellants have been ordered to run concurrently.
2. Briefly, the facts of the prosecution case are that on 22.10.2019 complainant ASI Mumtaz Ahmed left the P.S along with PC Muhammad Nawaz, PC Muneer Ahmed, PC Abdul Sattar, PC Muhammad Rahim and driver PC Sikander Ali in Government vehicle vide entry No.7, at 1200 hours, for patrolling in the area. During patrolling, the complainant received spy information at Beghari bridge at 1250 hours that a robbed Toyota Corolla Car No.BCK/435 (Sindh) Model 2014 of white colour, robbed in Crime No.657 of 2019, registered at Police Station Sachal Goth, District Maleer Karachi for offence under section 395 P.P.C, 04 persons boarded therein, was coming towards Garhi Khairo; the complainant conveyed such information to his subordinate staff and then made Nakabandi at Jamali Wah on Shahdadkot road; at 1300 hours the police party saw the pointed car, coming towards them, which on their signal, was stopped at the distance of 10 paces, wherefrom 04 persons armed with T.T. Pistols alighted and started firing upon them; the police party also retaliated in their defence and encounter continued for 10 minutes, whereafter the complainant arrested 02 accused persons named Saeed Ahmed son of Gahi Khan, by caste Kakepoto with unlicensed 9 MM pistol and empty magazine and Bilawal son of Khan Muhammad, by caste Babar, with unlicensed 30 bore pistol and empty magazine, which were sealed, while two unknown accused persons made their escape good; the complainant also secured the car reported to have been robbed from the jurisdiction of Police Station Sachal Goth District Maleer Karachi and such mashirnama was prepared in presence of mashirs PC Muhammad Nawaz and PC Muneer Ahmed. Thereafter, the arrested accused and recovered properties were brought at Police Station Garhi Khairo, where the subject FIR was lodged. After usual investigation, the above named two accused persons were sent-up with the challan to face their trial.
3. A formal charge against the accused ("the appellants") was framed at Ex.2, to which they pleaded 'not guilty' and claimed to be tried.
4. At the trial, the prosecution examined PW-1 complainant ASI Mumtaz Ahmed at Ex.3, who produced FIR, mashirnama of arrest and recovery, roznamcha entries Nos.7, 13 and 14 at Ex.3-A to 3-E respectively; PW-2 PC Muhammad Nawaz at Ex.4, who produced mashirnama of place of wardhat at Ex.4-A; and, PW-3 10/ASI Abdul Sattar at Ex.5. Thereafter, the prosecution closed its side vide statement at Ex.6. The statements of the appellants under Section 342, Cr.P.C. were recorded at Ex.7 and 8, wherein they denying the allegations professed their innocence and false implication. The appellants had not examined themselves on oath under Section 340(2), Cr.P.C. However, appellant Bilawal examined Zulfiqar Hussain son of Ghulam Hussain as his witnesses, and, whereas appellant Saeed Ahmed did not examine any person as his defence witness. At the conclusion of trial and after hearing the learned Counsel for the appellants and learned ADPP for the State, the learned trial Court convicted and sentenced the appellants vide impugned judgment dated 09.04.2020, as discussed in paragraph-1 supra, which has been impugned by appellants Saeed Ahmed Kakepoto Abro and Bilawal Babar by filing the captioned separate appeals being Criminal Appeal No. S-32 of 2020 and Criminal Appeal No.S-40 of 2020 respectively.
5. It is, inter alia, contended by the learned Counsel for the appellants that the appellants are innocent and they have been falsely implicated in this case by the police by cooking-up false story of encounter, in which nobody from either side had sustained any injury; that there are material and glaring contradictions in the evidence led by the prosecution; and, that the prosecution has failed to prove its case against the appellants beyond reasonable doubt. The learned counsel prays that the appeals may be allowed and the appellants may be acquitted of the charge.
6. Learned Additional Prosecutor General has mainly contended that the prosecution by examining three PWs namely complainant A.S.I Mumtaz Ahmed, mashir PC Muhammad Nawaz; investigating officer A.S.I Abdul Sattar and producing necessary documents namely FIR, Mashimama of arrest and recovery roznamcha entries memo of place of wardat and FSL report has proved its case against the appellants. The learned Additional Prosecutor General prays for dismissal of both the captioned criminal appeals.
7. I have considered the submissions of learned Counsel for the appellants and learned Addl. P.G, and have gone through the evidence with their assistance.
8. From a perusal of the record, it would be seen that despite extensive firing between the police party comprising five personnel including the complainant and accused numbering four, which lasted for 10 minutes, nobody from either side had admittedly sustained even a scratch in the alleged firing; the prosecution case was that the police party made Nakabandi at Jamali Wah, where they saw the pointed car coming towards them, which on their signal was stopped at the distance of 10 paces, and whereas PW Complainant A.S.I Mumtaz Ahmed and PW Mashir PC Muhammad Nawaz both have stated that "the accused themselves stopped the vehicle upon seeing the police mobile"; PW-1 complainant ASI Mumtaz Ahmed has stated that "We left PS and reached at Begari pul via Main Bazar, Panj Gali Chowk, Wagon Stand and then Begari Pul; I did not associate any private person; our police mobile was parked at eastern side of place of wardat" and whereas PW-2 Mashir PC Muhammad Nawaz in his cross-examination has stated that "we patrolled via Panj Gali Chowk, Wagon stand then Begari Pul; we parked our police mobile on the western side of the road and we were standing on the Northern side of the road"; PW-1 complainant A.S.I Mumtaz Ahmed has stated that "I do not remember the names of police officials, who were deployed at the eastern or western side of the road; 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 complainant apprehended accused Saeed"; PW-1 complainant A.S.I Mumtaz Ahmed has stated that "encounter occurred at the distance of 10/15 paces" and whereas PW-2 Mashir Muhammad Nawaz has stated that "encounter took place at the distance of 40/50 paces"; PW-1 Complainant A.S.I Mumtaz Ahmed has stated that "all the accused persons made firing upon us simultaneously" and whereas PW-2 Mashir PC Muhammad Nawaz has stated that "accused Saeed started firing upon us first"; PW-1 Complainant A.S.I Mumtaz Ahmed has stated that "we made straight firing in our defence" and whereas PW-2 Mashir PC Muhammad Nawaz has stated that "we made aerial firing in our defence"; the prosecution case was that the two accused persons (Bilawal and Saeed Ahmed) stood there while dropping their weapons on the ground after the encounter, but PWs Complainant A.S.I Mumtaz Ahmed and Mashir PC Muhammad Nawaz have stated that "the pistols were recovered from the right hands of both the accused persons"; PW-2 Mashir PC Muhammad Nawaz has stated that "during encounter, the accused persons were on western side and we were on Northern side of the road; the accused persons were arrested at the distance of about 50 paces after the ending of firing, but that has not been deposed by PW-1 Complainant A.S.I Mumtaz Ahmed, who further deposed that "investigating officer came at the police station afterwards and whereas PW-2 Mashir PC Muhammad Nawaz has stated that "investigating officer was present at the police station; PW-3 Investigating officer A.S.I Abdul Sattar has stated that "I tried to associate private mashir, but none agreed, that has not been deposed by PW-2 Mashir Muhammad Nawaz, who has further stated that there were some ditches, plants/portion of jungle and watercourse beside the road; two accused persons fled away by taking advantage of Wah; the watercourse was in between us having banks at the height of about 3/4 feet" but PW-1 Complainant A.S.I Mumtaz Ahmed and/or PW-3 investigating officer Abdul Sattar have not stated a single word about the availability of ditches, plants/portion of jungle and watercourse at the place of incident; moreover the name of the owner of the alleged car was not disclosed by any of the three PWs examined by the prosecution nor ownership documents of the car were collected during investigation; PW-6 investigating officer Abdul Sattar has admitted that "he has neither collected any verification report nor has produced any document; PW-3 A.S.I. Abdul Sattar in his cross-examination has stated that "the case property was dispatched to FSL through Azhar Shah", who has not been examined by the prosecution, and whereas FSL, a copy whereof is available at pages-129-130 in R&Ps, contains a note that "above mentioned weapons and crime empties produced were brought and signed by ASI Mumtaz Ahmed, Police Station Garhi Khairo" and it does not show that the case property was delivered by PC Azhar Shah in the office of FSL; A.S.I Mumtaz Ahmed, who is complainant in this case and was examined at Ex.3, did not utter a single word about taking the case property by him to Forensic Science Laboratory; FSL report further reveals that twelve, 30 bore crime empties, shown to have been secured from the place of wardat, marked as "C4 to C15", were not found fired from 30 bore pistol, allegedly recovered from the accused at the spot; the ingredients for offence under section 412, P.P.C. were completely lacking in this case and no evidence whatsoever for establishing the charge under section 412, P.P.C. against the appellants has been adduced by the prosecution. The aforementioned glaring contradictions, material infirmities, discrepancies and admissions of the prosecution witnesses during trial adverse to the prosecution case, which did go to the root of the case, rendering it doubtful, were not at all attended to by the learned trial Court, while passing the impugned judgment dated 09.04.2020, convicting and sentencing the appellants, although the benefit of doubt, if any, arising in the prosecution case is to be extended to the accused not as a matter of grace, but as a matter of right; and, thus the impugned judgment, which suffers from misreading and non-reading of the evidence, and the conviction and sentences awarded to the appellants vide impugned judgment, in my humble view, cannot sustain. Reliance in this context can be placed on the case of Muhammad Akram v. The State (2009 SCMR 230), wherein Hon'ble Supreme Court of Pakistan has held that:
"It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
In the case of Muhammad Ilyas v. The State (1997 SCMR 25), the Hon'ble Supreme Court of Pakistan has held that:-
"It is well-settled principle of law that where evidence creates doubt about the truthfulness of prosecution story, benefit of such a doubt had to be given to the accused without any reservation. In the result, there is no alternative but to acquit the appellant by giving him benefit of doubt".
9. In view of what has been stated above, I am of the considered view that the prosecution has failed to prove its case against the appellants beyond a reasonable doubt, therefore, both the captioned criminal appeals deserve to be allowed. These are the reasons of short order announced by me on 15.05.2020, whereby the said appeals were allowed and the conviction and sentences awarded to the appellants vide impugned judgment dated 09.04.2020, were set aside and the appellants were acquitted of the charge and were directed to be released forthwith if their custody was not required in any other case.
JK/B-13/Sindh Appeals allowed.