FAHIM AHMED SIDDIQUI, J.---The appellant was arrested in a case registered at Khan, Mirpurkhas being Crime No. 08/2009 for assault at police party with deadly firearm weapons. He was prosecuted before the learned Additional Sessions Judge-I/ATC Mirpurkhas for the offences punishable under Sections 324, 353 and 34, P.P.C. and Section 7 Anti-Terrorism Act, 1997. After conclusion of trial, he was found guilty of the said offences, as such trial Court convicted and sentenced him as under:-- i) for offence under Sections 324, 34, P.P.C. to suffer for rigorous imprisonment for a period of 10 years and to pay fine of Rs.50,000/- and in case of default to suffer simple imprisonment for 6 months more. ii) for offence under Sections 353, 34, P.P.C. to suffer for rigorous imprisonment for a period of 2 years and to pay fine of Rs. 20,000/- and in case of default to suffer simple imprisonment for 2 months more. iii) for offence under Section 7(h) ATA to suffer for rigorous imprisonment for a period of 7 years and to pay fine of Rs. 50,000/- and in case of default to suffer simple imprisonment for 6 months more.
However, the trial court extended benefit of Section 382(b), Cr.P.C. to the appellant/convict and also ordered that all punishments shall run concurrently.
2. The factual matrix of the case as described in the body of FIR is that on 17-01-2009, a police party headed by SIP/SHO Taj Mohammed Bhayo of PS Khan left the police station for routine patrolling within their beat. After patrolling at different places, when they reached at Chao-Wati Stop at about 20:30 hours, they saw under the headlights of their vehicle that four persons armed with deadly weapons were standing on the road. Amongst them, the police identified Aijaz Khaskheli resident of village Dad Khaskheli armed with DBBL, they motioned the police mobile to stop and took position on the roadside. The police, after stopping their vehicle, got down, but the accused persons started firing on the police, which was retaliated in self-defence. Thereafter, the accused persons getting advantage of jungle succeeded in decamping from the place of incident. The police party, then approached to the place of the incident and found one cell phone and a diary lying on the ground. The police prepared such memo of recovery and place of incident by appointing HC Mohammed Hassan and PC Ali Sher, and later on proper FIR was lodged at police station.
3. After completing the investigation, the police submitted a Final Report before the learned Judge Special Court ATA, Mirpurkhas showing appellant Aijaz and three unknown persons as absconders. The learned trial court issued non-bailable warrants repeatedly against the appellant and ultimately declared him as proclaimed offender. Thereafter, the charge was framed against the appellant in absentia and plea of the appellant was recorded deeming the charge was not accepted. Thus, the trial was completed against the appellant in his absence here and he was convicted in absentia and sentence was awarded similar to the sentence as mentioned above.
4. Later on, the appellant was arrested in a case under Section 23(i)(a) Sindh Arms Act being FIR No. 24/2016 of PS Piyaro Lund and he was committed to jail. During such confinement, the impugned judgement was communicated to the appellant, as such a Criminal Appeal No. D- 95/2016 was filed before this Court and the case was remanded back for retrial. After a retrial, the aforesaid conviction and sentence was passed.
5. Mr. Mir Shahzad Ahmed Talpur learned counsel appearing for the appellant assailed the impugned judgment on the ground of improper appreciation of evidence and misreading and non-reading of the available evidence. He pointed out that after a close analysis of the evidence, it would crystal clear that there has been enhancement and exaggeration in the evidence of both the important prosecution witnesses. He further submitted that the evidence of the investigating officer is also evasive and it appears that he has neither visited the alleged spot nor conducted investigation at all. According to him, the conviction is not only bad in the eyes of law, as the case against the appellant is a case of no evidence.
6. Mr. Shahzado Saleem Nahiyoon, learned DPG submits that the case is proved and conviction should be maintained.
7. After having heard the learned counsel for the appellant and the learned Public Prosecutor and after precisely going through the record, we are of the view that the case against the appellant is highly doubtful and his conviction is not justifiable. It is hard to believe that the appellant was fully identified by the police party with his name, parentage and residential address but the police could not succeed in his arrest. We think that in such a situation submitting a final report under Section 512, Cr.P.C. is not conceivable and cast thick clouds of doubt regarding alleged police encounter. In the instant case, it is alleged by the complainant that a cell phone and a diary were also recovered from the place of the incident, but during investigation, no cell phone data record
(CDR) of the recovered cell phone was collected by the investigation officer. We are of the view that by getting CDR and doing geo-fencing, some vital information might have been collected but not adopting this course, itself sufficient to create a doubt as to the prosecution story of police encounter.
8. Although, the case against the appellant was firstly proceeded in his absentia, but later on a de- novo trial was ordered. In the fresh trial, some serious discrepancies were observed. The complainant in his cross-examination admitted that the encounter was taken place with a close distance, but no one from either side received injury nor the police mobile was hit by any bullet. It is a fact that no empty was produced or identified before the trial court as case property by complainant. Only a mobile phone and a diary were produced as case property by complainant. It is also observed that the investigation officer Attaullah has stated in cross that the two memos i.e. memo of recover dated 17.01.2009 and memo of inspection of place of incident dated 18-01-2009 pertains to different case property. He also admitted that he did not contact any person whose phone numbers are available on the diary recovered from the place of incident. He also admitted in cross that he did not verify from any person of locality about the incident of police encounter.
9. In this position of affairs, it can be said that there are so many frailties in the prosecution case, which makes the prosecution story extremely dubious. It is a settled principle that the benefit of the doubt should be extended in favour of accused. We fortify our view, from a case of the Honorable Supreme Court reported as Ghulam Qadir v. State (2008 SCM R 1221), wherein it is held as:-- "It needs no reiteration that for the, purpose of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge-makers the whole case doubtful.
Merely because the burden is on the accused to prove his innocence it does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt and this duty does not change or vary in the case. A finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case.
Mere conjectures and probabilities cannot take the place of proof Muhammad Luqman v. The State PLD 1970 SC 10."
10. The upshot of the above discussion is that the case against the appellant is not free from doubt, hence the instant appeal was allowed by short order on 16-08-2017, whereby the appellant was acquitted from the charge and impugned judgment was-set aside and these are the reasons for the same.