Haji Khan (Appellant) VS The State (Respondent)

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IN THE HIGH COURT OF SINDH,

CIRCUIT COURT HYDERABAD

BeIqre:

Mr. Justice Mohammad l(arim Iihan Agha

Cr. Appeal No.S-25 ot 20 tIr

Haji Khan Versus

The State

Appellant : Haji Khan Through Mr l\4ir lll-ral<ir: A ti 'lirll 'r.rr Advocate.

Respondent : The State Through Mr. Shahid Ahme d Shail<h.

A.P.G

Date of hearing 27.O4.20)7

Date of judgrnent 28.O4.2017

JUDGME ITT

MOHAMMAD KARIM KHAN AGHA J.- Appellant l{aji l{han was tried by learned Ill-Additional Sessions Judge, Shaheed Benaz-irabad, in Sessions Case No.97 I 2014, arising out of crime No'86 of ?'O1!'\' registered at Police Station Daulatpur, for offence under sections 32'1, 353,401,398PPC.Accused/appellar-rtwaslbr-ttrdguiltylryjudgtr.rent- dated 28.01.2015 (the impugned juclgmer-rt) ancl was convicted ar-rd- sentenced; (1) uuder Section 324 PPC to tttrdergo five vcars imprisonment ancl further he was clirected to pray firre of Rupees l-etr thousand, in case of default of payment of fine, the accused / appellant was ordered to undergo S.l for one tlonth more, (2) ttnder Section 398 PPC to undergo R.I for four years and to pay fiue of Rs. 10,OOO/-, in default thereof to suffer: s.l lor fifl-een clays r.nor.e, (li) ?* under section 353 PPC to unclergo R.l for two years anc[ to pay linc of Rs.200O/-, in case of failure to pay fine, he was ordered to suffer' '3'I for 1o days more. All the sentences wel.e ordered to run corrcurrently' whereas, the accused / appellanL was acquitted ft'orrt the charge under section 401 PPC. Horo,ever, benefit of section 382-ts Cr.P.C. was also extended to him. The appella.nt has challenged the irupr'tgr.recl judgment through this instant appeal.

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2.Briefly the facts of the prosecution case are that cornplailrarrt IJC Muhabat Ali solangi of P.s Daulatpur lodged F.l.R. stating thereirr l.lral- on 19.07.2013 at 2000 hours near 34 Hazar Mori al_ Brrs Stop Oasirn Shah Khuhi Deh Malwah Taluka liazi Ahmerl present. ar:ctrse<l alongwith absconding accused with their comnlon int-ention cluly armed with deadly weapons made preparatiot:r to corlrrrir oflerrce arrrl gave signal to complainant party to stop r,vith intentiorr trr r:orrrn.rit llrr. offence of robbery and also made firir-rg upon them urith intelltiorr trr commit their murder where upon the police otficials returrrecl fire i.rrr<l after an encounter lasting around 15 minutes t1.re appellalrt rv;r:r captured/arrested in injured condition and througll strch a.cts th<- appellant and the absconding accused also deterrec,l police parl.y fr-orrr discharging their lawful duty. After the encounter llte policc 1.rar.r.1 returned back alongwith arrested appellant arrd wea.porl al- ltolir:e station where complainant lodged instant F.I.R.

3.After completing necessary formalii-ies r:harge was [r.arnecl against accused / appellant at Ex.B, to which he pled rrot guilty erncl claimed for trial vide Ex.9.

4.In order to substantiate its case the prosecution exanrirr.ecl Ot:] prosecution witnesses (PW's) and thereafter learnecl DDPP clor:erl r'tre side of the prosecution under his statement at ltrx. 1ll.

5.Thereafter, statement of accused / appella.nt trnder Sectiorr llzl2 Cr.P.C was recorded at Ex. 14 wherein he denied ttre prosecutir.rn case claiming his innocence and that he had been falsely irnlrlicalcrl, ttc neither examined lrimself on oath nor led ar-ry evidence in bis <lele rrr:^.

6.The learned trial court after hearing the learned counsel lor t.he parties and on the assessment of the entire evidence corrvicted and sentenced the accused / appellant as stated above in the irnpugned judgment.

7.By order clated 31-03-2015 the appellanl. was releasecl r-rrr hail Lri, this court pending the hearing of this instant appeal.

8.The facts of this case as well as evidence ;rroduced befote the trial court find an elaborate mention ir-r the irnpugned juclgmerrt passed by the trial Court therefore the same rnay not be reproducer-l herc so as to avoicl duplication and unneccssary rcpetitiorr.

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'l Z3 9- Learned courrsel for the appellant contenclecl that the irnl;r,rgr.rccl judgment is opposed to facts, law and equity; that the tr.iat r:orrrl has failed to appreciate the material placed berore it a.cl convir:rcrl tlrc appellant; that the trial court has miserably n-risconceivecl the eviclence recorded and the witnesses in their respective cross-exan)inar.iorrs lel(_ room of doubt which is favoring the appellant; th.e fact,ual aspeqtn .f the case have not been properly exarr,ined juclicior.tsry tr,r'llirerr'trr," care and weight as such conviction is not sustainable trnder the law; that the prosecution case suffers from legal and factual infirmities; that the trial court has also failed to appreciate r,he facl.s orr recor.cl which leading towards fabrications, irnprovernents, exaggeral.ions in the prosecution case for creating justification; that the rnotive a:r. ser forth is very weak and not to be considerecl as trasis <-r[ r.he alegecl incident; that the trial court has also misconceived the legal inlirrnir.ies gravely involved in the case rvhile convicting the appellarrt an<l as srrr:lr for all the above reasons the prosecution hacl failecl tr.r l)love it,s 11;1116, against the appellant beyond a reasonable cloubt ancl l-hus frrr all the above reasons the impugned judgment shor-rld be set aside atrcl the appellant acquitted.

10.In suplrort of his contentions, leanlccl counsel lbr- ttre aplrcllarrr has placed reliancc on the cases of samantler alias eurbalr rrnd - others v. The state (2o17 MLD 539), sadaruddin alias sacl'ro anrl others v. The State (2015 MLDlzSg), Abdul Aziz an.d.4 .t.hcr:& -,. The State (2014 YLR 584), Muhammad Hanif ali:rs pocho w. ,r.tre State (2014 PCT.LJ 928), Rahim Bakhsh w" '1.h.*: Stnte (rtOlo llcr t.. I 642), Mour and 4 others v The State (2L)lar P(1t..["-t lTOfr) rrirrl Mumtaz Ali v. The State (2O11 SCMR'ZO).

11.Thc learncd A.P.G. fully supported the irnpugnecl judgnrerrt. irrrcr contended that based on the evidence orr recorcl the prosecr-rtiorr hacl proved its case against the appellant beyond a reasonahle doutr{..

12.I have considered the argurnents of learnecl counsel. ;rerrrsetl rrre record and the case law cited by them at the bar.

13.I am of the view that there are grave doubts as to the reliability of the prosecution story which has come on record through thc llW's for the following reasons:

(a)That there is no entry stating the time when l-he trrolice par.ry left the police station for patrol. Entry No.1 1 is an arrival entr-v 'v[

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and not a departure entry which arrival enttryr rnay ltav" l-,eert falsified in order to cover up the lack ol'a clcltar:ture elrtry as it. refers to a so called time of departure whictr olherwise has nol been noted down any where by the police. Tlre signilir:atrr--c ol'thc absence of such departure entry was highlighted irr tl.re 1-6sq o[ Mour and 4 others v The State (2.016 PCr.l"l I'106) l.,y reference to the case of Loug thtough Centrnl I'rison Hyderabad V State (1999 P.CR.LJ 595) which \/as a llivisiorr Bench judgment of this Court.

(b)That despite the police patrol receiving pr-iol s1r.y infbrntatlor.r about the whereabouts of the appellant and the absconclir.rg accused no attempt was made by therrr {o itrcIr-rr{c a-r.r-lr independent mushirs in violation of S.103 Cr.PC. lrr this resper:l referellce may be made to the case of Samander alias Qrrrbau and others v. The State (2Oi7 MLD 539)

(c)That the 2 eye witness PW's both of whont were police of{icials (cornplainant PW 1 HC Muhabat Ali and PW 3 Ali Dost) stal-c that it was about 8pm when they rvere sigrraletl to str:l'r. thereafter the encounter started and lasted ltrt at'ot.rlcl I].r minutes by which time according to PW 1 it was then too dark to - collect empties and' according 'to botl-r PW I and PW 3 the encounter took place from about 40145 paces atrd PW lI was irr the rear of the mobile. Then how was it possible itr such tlarl< at such distance with only the police mobile light fbt both [)W's 1r-1 identify all assailants by name. In my view this narl-atioll ol events seems to lack credibility. In this respect reference rnay trc made to the case of Mour (Supra)

(d)Accordir-rg to PW t he and 4 other police officials wero itr lhe police mobile at the time of the etrconnter rnaking li irr total. According to his evidence all the police officials were at-rrred wilh SMG's and started firing and he alone lired aprpror< l.i{i s}tols. l:\A/ 3 fired 32 rounds. According to PW 2 (the IO) according to l-he S. 161 statements of 2 of the other police officials al- the scerre (Arrwar and Abdul latif) they also fired arotttrd 2'5 l:\O ror.lrrrJs. Thus it was likely that the police party fired well ovel t't.re hundred rounds but not a single recowerv was rrtnd.e. 'l'he motor cycle near by was also not hit tly a sirrgle btrlle l"'l'his r.lo':s not seem to be understandable. In this respect refet'eltce ttlav lre Yl,

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made to the case of Abdul Aziz and 4 others v. The State (2Ot4 YLR s84)

(e)During the alleged encounter which lasted ror.rncl Iii rninutes and bearing in mind that the 5 police officials wele firec-l rrpou first by the 3 accused and that the accusecl firerl tl-rrsts fronr their I(alashnikov's as per the,evicleuce o[ ]-\I/.l it seerrrs nol. to appeal to reason that not a single police officer out of 5 receivetl a scratch let alone an injury and that not even a single bullet hit. the police mobile and not a single round out o[ t.he many firecl by the accused was recovered. In this respect l:elererrce is rrade to the case of Sadaruddin allas Sadoro and others v. The State (2O1s MLDl2se)

(f)It seems strange that the wounded and bleeding appellanl who was injured in the leg during the encounter was not tal<en straight to the hospital for treatment when he was arrestecl .

Instead he was taken to the PS where accorcling to l:'\1/ il A[il Ghulam Qadir he was sent to the hospital for lleatment. However there is no mashirnalrra of arrival ol tlre irrirrr-r:d accused, no letter referring him to hospitaL rrnd rro MLC. ln this respect reference may be made to the case of Mumtaa All w. The State (2011 SCMR 70). So how did the appellant get. to the Hospital? Was he taken from the scene of lhe irrciclenl- or v.,as there no scene of incident and in fact he was injured in police custody and a false encounter was cool<ecl trp agairtsl hint as apparently he was a lnown criminal? h-rterestirrgly, clespit-e it being dark and the encounter taking place around 40145,)aces away the police rnanaged to expertly hit the appellant in l.he knee cap only.

(g)PW 2 who was the IO of the case was clccla.r'cd lo l.re a lrostile witness by the prosecution ancl was cross exanrilred ltl, llre prosecution so to a certain extent in tly vier,v hi:r erri,.lcltr;c is l.

doubtful/unreliable as he was not voluntarily prepared to support the prosecution case. He visited the wardat a day afl-er the incident rather than the same r-right ar-rd riid not ;:repare a proper sketch of the wardat setting out the positions of t-he various parties and police mobile, motorcycle etc a1- the lime of the incident.

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(h)with regard to the recovery of the illegal weapon which was near the unconscious injured appellant at the l.ime of recovery it is observed that as per the ballistic report it-s serial No. was found having been "rubbecl". Tleis was quite ar) obvious distinguishing feature however it is not rnentionecl in the nlem.() of arrest and recovery and ought to have been so rlentioned. Il was found to be in working orclet btrt- there was r:ro ballistit, match as no recoveries were made and no evidencc that it iracl even been fired during the alleged encount.er" ln my view thc' above caste doubt on the weapon's recovery frorr the possessiorr of the appellant especially keeping in view the othe r. circumstances surrounding the alleged elrcounter as mentionecl above. It thus cannot be ruled out that the recovet'etl weaporr was foisted upon him by the police.

14.It is true that the 2 police eye rrvitnesses largely corroborate each other, that it is settled law that minor contraclictions can be ignorecl and police witnesses are as good as any other witnesses howevcl. ear:h case must be considered keeping in view the particular lar:ts anr_l circumstances of that case which is unlil<ely tcr be erarctly irlcnt.iczl t.,, other cases on its own particular facts and circumstances an<l )- evidence led at triat.

15.It is also a cardinal principle of crirninal law'that. it is the obligation of the prosecution to prove its case Lreyond a reasonal.rle doubt against the accused ,and any bereefit of the cloubt- trrust go to tlrc accused as of right and not as of concession. In this rcspet:t relerolr,:c is made to the case of Tariq Pervez v. The State (1995 SCMII 1345).Furthermore, it was recently held by the Ilon'ble Supreme Court in the case of Hashim Qasim V State (Criminal Appeals No. l.l5 ancl 116 of 2013) dated i2il, April 2017 in respect of the benefit ol<lourl.rt at para 20 by reference to the case of Riaz Masih @ Mithoo v" The Stata (NLR 1995 Crl.694) that even a single doutrt, if lcrrrrrrl rea$orral'lr-. Y would entitle the accused person to acquittal and not a t:ombinatiorr ol' several doubts is bedrock principle ofjustice.

16.I am of the view that when the eviclence is viewed in it-s t.otality especially bearing in mind the factors high lightcd in par-a 13 (a) to (tr) above I have grave doubts that an encounter took place at all l-rel-r,'r,eelr the police and the appellant and the two erbscorrcling ar;r:r.rscrl ancl eve n i,t -iI

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if such an encounter did take place there are i, nry view grave cror,bts in the prosecution case the benefit of which rnust go to the appelrant.

17.Thus, I find that the prosecution has failecl to prove its casc beyond a reasonable doubt against the appeilant a.cl rl-ra{ thc appellant is entitled to the benefit of the doubt and as such set asiclc the impugned judgment and up hold this appeal.

18' As such the appellant is hereby acquitted ancl he is o'clerecl to be immediately released by the concernecl jail authorities, if he is iu custody, unless he is in custody in respect ojf sorne other case.

Hyderabad: 'i,1, Dated: 28-04-2O17 ,:UCIdE

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