16/02/2025
"شک کا فائدہ—استغاثہ کے مقدمے میں اگر کوئی واحد ایسی صورتحال پیدا ہو جو معقول شک پیدا کرے، تو یہ ملزم کو شک کا فائدہ دینے کے لیے کافی تصور کی جاتی ہے۔"
🔴 2024 M L D 670 [Sindh (Sukkur Bench)]
Before Naimatullah Phulpoto, J
Liaquat Ali alias Liaquat and 4 others ---Appellants.
Versus
The State ---Respondent
Criminal Appeal No. S-14 of 2022, decided on 17th October, 2022.
🍀(a) Penal Code (XLV of 1860)---🍀
----Ss. 395, 324, 353 & 412---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Dacoity, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, dishonestly receiving stolen property---Appreciation of evidence---Withholding material evidence---Non-examination of informer and police witness---Accused were charged for snatching a tractor from its driver and driving it away; and after police party pursued them, the accused made firing upon them---Record showed that first information was given to the police by one Mr. "I" that his Tractor had been snatched by three unknown armed persons---Said informer had not been examined by the prosecution at the trial---However, it was a case of spy information, and SHO had sufficient time to call independent and responsible persons of the locality but he avoided doing the same---Case of the prosecution was that at the time of encounter, accused persons were identified by a Police Constable but said Police Constable had not been examined by the prosecution at the trial---Non-examination of informer and Police Constable was fatal to the prosecution---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of any doubt---Appeal against conviction was accordingly allowed.
Mour and 4 others v. The State 2016 P Cr J 1706 ref.
🍀(b) Penal Code (XLV of 1860)---🍀
----Ss. 395, 324, 353 & 412---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Dacoity, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, dishonestly receiving stolen property---Appreciation of evidence---No weapon of offence recovered ---Accused were charged for snatching a tractor from its driver and driving it away; and when police party pursued them; the accused made firing upon them---From the close scrutiny of evidence, it transpired that there was police encounter for ten minutes with sophisticated weapons from both sides but not a single injury or scratch was caused to either party---During investigation, accused persons were arrested but no crime weapon was recovered from them---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of any doubt---Appeal against conviction was accordingly allowed.
Mour and 4 others v. The State 2016 P Cr L J 1706 rel.
🍀(c) Criminal trial---🍀
---Benefit of doubt---Principle---Single circumstance, which creates reasonable doubt in prosecution case, will be sufficient to extend the benefit of doubt.
Muhammad Mansha v. The State 2018 SCMR 772 rel.
Shabbir Ali Bozdar for Appellants.
Syed Sardar Ali Shah, Additional Prosecutor General for Respondent.
Date of hearing: 17th October, 2022.
🔴 Judgment
NAIMATULLAH PHULPOTO, J---Appellants Liaquat Ali alias Liaquat son of Durrani, (2) Ghulam Shabbir son of Durrani, (3) Sanwal son of Durrani, (4) Riaz son of Attal and Ghulam Yaseen son of Gulsher were tried by learned 3rd Additional Sessions Judge, Mirpur Mathelo, in Sessions Case No, 166 of 2020. On the conclusion of trial, appellants were convicted under Section 395, P.P.C. for 03 years R.I and to pay fine of Rs.5000/- each. In case of default in payment thereof, the appellants were ordered to suffer S.I for one week more each. Appellants were also convicted under Section 324 P.P.C. and sentenced to 03 years R.I and fine of Rs.5000/- each. In case of default in payment thereof, they were ordered to suffer one week S.I more each. Appellants were convicted under Section 412 P.P.C. and sentenced to 03 years R.I and to fine of Rs.5000/- each. In case of default in payment thereof, they were ordered to suffer one week S.1 more each. The appellants were also convicted under Section 353 P.P.C. and sentenced to one year Rd and to fine of Rs.2000/- each. In case of default in payment thereof, the appellants were ordered to suffer three days S.I more each. All the sentences were ordered to run concurrently. Appellants were extended benefit of Section 382-B Cr.P.C.
2. Brief facts of the case leading to filing of appeal are that SHO P.S. Khanpur Mahar lodged FIR against appellants on 29.04.2020 on behalf of the State and it was recorded vide Crime No.30/2020 for offences punishable under Sections 395, 324, 353 and 412 P.P.C., alleging therein that on 28.04.2020, at 2300 hours, one Irshad Ali Mirani had appeared at P.S and gave information to the police that he had loaded hill-sand in a Tractor Trolley and was coming from Rohri to Imamwah, when he reached at Khair Deen Mangrio Wahi, where it is alleged that three unknown culprits snatched from him one Tractor and drove it away. SHO alongwith his subordinate staff on such information left police station vide roznamcha entry No.21 at 2315 hours for the recovery of snatched Tractor. On the way, he received spy information that snatched Tractor has been parked in house of appellant. Liaquat Bozdar, his village namely Bachal Khan Gabol. On such information, police party proceeded to the pointed place and reached at the house of appellant Liaquat at 1700 hours and saw Bed-Ford Tractor and one Fiat Tractor in the houses of appellants. Thereafter, it is alleged that appellants armed with KKs and pistols fired upon the police party with intention to kill them. Police party also fired in self-defence, such encounter continued for 10 minutes. Thereafter, appellants succeeded to run away. It is alleged that the appellants were identified by PC Muhammad Ayub. FIR of the incident was lodged on behalf of State in above referred sections. During investigation, appellants Liaquat and Abdul Sattar were arrested and challan was submitted against them under the above referred sections.
3. Trial Court framed charge against all the five appellants at Exh.5, to which appellants/accused pleaded not guilty and claimed for trial. Prosecution examined 03 PWs and relevant documents were provided in evidence. Thereafter, prosecution side was closed. Trial Court recorded statements of appellants/accused under Section 342 Cr.P.P in which they claimed false implication in this case and denied the allegation leveled by the prosecution; however they did not lead evidenc in defence and declined to give evidence on oath. Learned trial Court, after hearing learned Counsel the parties and assessment of the evidence, convicted and sentenced the appellants as stated above, hence appellants filed the above appeal before this Court.
4. Mr. Shabbir Ali Bozdar, advocate for the appellants argued that there was encounter for ten minutes but none received injury from either side; that appellants were identified at the time of incident by PC Muhammad Ayub but he was not examined before the trial Court. Lastly, it was argued that one Irshad Ali Mirani had first informed the incident to the police officials but he was also not examined by the prosecution. It is submitted that prosecution case is doubtful. In support of his contentions, learned Counsel for-appellants has placed reliance upon the case of Mour and 4 others v. The State (2016 P Cr J 1706).
5. Syed Sardar Ali Shah, Additional Prosecutor General argued that prosecution has brought on record huge evidence to connect the appellants and prayed for dismissal of appeal.
6. After hearing learned Counsel for the parties, I have re-examined the prosecution evidence and, perused the impugned judgment. I have come to the conclusion that prosecution had failed to prove its case against the appellants for the reasons that first information was given to the police by one Irshad Ali Mirani that his Tractor has been snatched by three unknown armed persons from him; said Irshad Ali Mirani has not been examined by the prosecution at the trial. It was the case of spy information, SHO had sufficient time to call independent and responsible persons of the locality but he avoided. It is the case of the prosecution that at the time of encounter, appellants were identified by PC Muhammad Ayub but PC Muhammad Ayub has not been examined by the prosecution at the trial. Non-examination of Irshad Ali Mirani and PC Muhammad Ayub would be fatal to the prosecution. From the close scrutiny of evidence, it transpires that there was police encounter for ten minutes with sophisticated weapons, from both sides but not a single injury or scratch was caused to either party. During investigation, appellants Liaquat and Abdul Sattar were arrested but no crime weapon was recovered from them. In the case of Mour and 4 others v. The State (2016 P Cr L J 1706), it has been held as under:-
"Heard the arguments of learned Counsel for the parties and perused the record. Perusal of record reflects that the firing continued for ten minutes in between appellants and police party who were armed with automatic and semi-automatic weapons but none from either side sustained any injury in the incident. The case of prosecution is that four appellants Abdul Rauf, Sajan, Nizamuddin and Riaz made their escape good but were identified by PC Muhammad Haroon on the glimpse of head light of police mobile in the pitch dark night and he disclosed their names with parentage and addresses but he was not examined by the prosecution before learned trial Court and his non production in the Court itself had created material flaw in the prosecution case. Secondly appellant-accused Mour disclosed the names of above four appellants before complainant party but after their arrest they were not put in identification parade, therefore, the identification of above four accused in Court after one year carries no value. It is also settled principle of law that statement of one accused before police cannot be used against other co accused. Furthermore, no question was put to appellant Mour in his statement under Section 342 Cr.P.C, as to whether he disclosed the names of other accused to complainant party, therefore, this piece of evidence cannot be used against appellants Sajan, Abdul Rauf, Nizamuddin and Riaz.
7. For the above stated reasons, I have no hesitation to hold that trial Court failed to appreciate evidence according to sound judicial principles. A single circumstance, which creates reasonable doubt in prosecution case is sufficient to extend the benefit of doubt. In this regard, I am fortified with the case reported as Muhammad Mansha v. The State (2018 SOW 772), wherein the Hon'ble apex Court has held as under:
"Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is circumstance which creates a reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt not as a matter of grace and concession but as a matter of right. It is based on the maxim "it is better that ten guilty persons be acquitted rather than one innocent person be convicted. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 02 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)."
At the conclusion of the arguments, by short order dated 17.10.2022, for the reasons to be recorded later on, captioned appeal was allowed. Convictions and sentences recorded by learned trial Court vide judgment dated 01.03.2022 were set-aside. These are the reasons for allowing the appeal.
JK/L-13/Sindh Appeal allowed
Umair Shafique Mughal Criminal Lawyer Law Teacher Online Law & Order: Legal Debates and Cases Legal Precedents in Criminal Law
