Criminal Appeal No. 10 of 2017
SULEMAN son of MAQBOOL AHMED . . . . . . . . . . . . Appellant
V E R S U S
THE S T A T E . . . . . . . . . . . . . . . . . . . . . . . . . . . . Respondent
Date of hearing : 6th April, 2016.
For appellant : Mr. Aamir Pervaiz, Advocate.
For the State : Mr. Abrar Ali Khichi, A.P.G.Sindh.
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Syed Muhammad Farooq Shah, J.:- The appellant Suleman son of Maqbool Ahmed was tried by Mr. Abdul Karim Ansari, IXth Additional Sessions Judge, Karachi-East for an offence of possessing unlicensed .30 bore pistol alongwith three loaded bullets in its magazine. He was convicted and sentenced for the offence punishable under section 23(A-1) of Sindh Arms Act, 2013 to suffer RI for seven years and to pay fine of Rs.20,000/- and in default to pay fine to undergo RI for six months more. The benefit of section 382-B Cr.P.C. was extended to the appellant/accused.
2. From perusal of the record it appears that prosecution story rests upon three police officials, who had made arrest and recovery of illicit weapon with their joint venture on 27.3.2015 and on completion of usual investigation the appellant was charge sheeted under section 173 Cr.P.C. before the concerned Magistrate who accepted the charge sheet and transmitted it to the Sessions Judge being a case exclusively triable by Sessions Judge. The appellant challenged his conviction and sentence by filing the captioned appeal.
3. The case of the prosecution in nutshell is that initial documents viz. memo of arrest, search of accused and recovery prepared by the complainant ASI Abdul Latif, PW-1, reflects that he alongwith his two subordinates was busy in search operation at Dalmia and they found two culprits who on seeing the police party tried to escape; they were apprehended and from ‘Naifa’ of ‘Shalwar’ of appellant a .30 bore pistol, loaded with three live bullets in its magazine was recovered. The said pistol was transmitted to the Forensic Expert for his examination and report vide letter Exh: 5/B, which shows that a .30 bore pistol without number, loaded with three live bullets in its magazine, without license was dispatched. However, the detail mentioned at the bottom of said exhibit reveals that a pistol of .30 bore loaded with four rounds in its magazine has shown; however, perusal of examination report of forensic expert Exh: 5/C reveals that one .30 bore pistol, rubbed number with magazine marked/signed and four .30 bore live cartridges were received in his office.
4. In his statement recorded under section 342 Cr.P.C. the appellant has vehemently denied the charges levelled against him by the prosecution. I have considered the worthy submissions made by Mr. Aamir Pervaiz Kiyani, the learned counsel for the appellant and Mr. Abrar Ali Khichi, Assistant Prosecutor General, Sindh representing the State. I have also carefully scanned the evidence brought on the record.
5. Arguments heard. Record perused.
6. Learned counsel submits that the memo of recovery shows that the alleged weapon was recovered when prosecution witnesses consisting of three police officials, busy in search operation. However the complainant ASI Naveed Iqbal stated in his examination-in-chief that he was on patrolling duty along with three subordinates. He has categorically stated that three live bullets from Naifa of Shalwar of accused were recovered. Learned counsel submitted that how and why four bullets were sent to the Expert without mentioning the description of alleged recovered bullets and weapon. Learned counsel next submitted that in his cross-examination the complainant ASI Latif admitted that he was on patrolling duty and left the Police Station at 2000 hours; he has stated in cross that accused was caught hold by HC Manawar, however HC Munawar stated that they all encircled the accused and caught hold them. Learned counsel next submitted that how a weapon can be concealed inside the naifa of shalwar as alleged by the prosecution witnesses. By asserting about the contradictory and inconsistent evidence, learned counsel contended that the complainant stated that he handed over the custody and documents to Investigating Officer for investigation purpose but the Investigating Officer stated that accused and case property was handed over to him at 06:00 a.m. on 27.03.2015. It is further submitted that there are many other material contradictions amongst the examined prosecution witnesses but the trial court did not bothered to thresh out the prosecution evidence which was not inspiring confidence. It is further submitted that alleged weapon has been foisted upon the accused by the police officials and the evidence of prosecution witnesses is untrustworthy, without any independent corroboration. He further argued that in view of contradictions in the prosecution evidence and Forensic Expert’s report regarding number of recovered live bullets it cannot be said that prosecution evidence is reliable. Learned counsel lastly pleaded the innocence of appellant and argued that the appellant has falsely been implicated in this case by the police officials.
7. Conversely, Mr. Abrar Ali Khichi, learned Assistant Prosecutor General, Sindh argued that prosecution has proved the case against the appellant and evidence of police official is as good as of any other citizen; the evidence of police officials cannot be discarded simply for the reasons that they belongs to police force. He supported the impugned judgment.
8. The point which requires determination is that as to whether a .30 bore pistol loaded with six live bullets was recovered from the “NAIFA” of shalwar of appellant/accused and as to whether the prosecution evidence consisting on three police officials is inspiring confidence to award conviction and sentence to the appellant/accused through impugned judgment.
9. In the case of recovery of arm where the judgment of court leans upon the testimony of police officials, it is necessary to find out that there was any possibility of securing independent person at the time of recovery as in view of contradictory statement of prosecution witnesses and report of Forensic Expert as mentioned supra, the credibility of the prosecution witnesses is to be weighed in accordance with law as it is settled principle of law that judicial approach has to be cautious in dealing such type of evidence of police officials. It is not disputed that section 34 of Sindh Arms Act, 2013 excludes the provision of section 103 Cr.P.C. which is attracted to the personal search of persons, however, in view of aforementioned material contradictions regarding number of bullets dispatched for examination of Forensic Expert, who in his report mentioned that four live bullets were received by him besides the weapon. Sketch of secured weapon on the back of memo of arrest and recovery prepared by the ASI Abdul Latif reveals that three live bullets were loaded in the magazine of illicit weapon but the forensic expert denied such aspect. The sketch of place of occurrence Exh: 5/A reveals that place of incident is situated adjacent to Farooq-e-Azam Mosque and on the other side residential area of Dalmia has been shown and it was on 25.4.2015 which date transpires under the name and signature of SIP Naveed Iqbal Randhawa, Investigating Officer though charge sheet was submitted on 08.4.2015.
10. A perusal of impugned judgment reveals that learned trial court acted in oblivion of principles of appreciation of evidence in criminal trial to evaluate it and discover the probabilities with regard to the conviction of the accused. Suffice is to say that from material on record, the version of prosecution without corroboration adversely affects the credibility of prosecution witnesses testimony. It needs not to be reiterated that keeping in view the judicial wisdom, experience and while balancing the judicial conscious justice should be dispensed with according to the law and not to the whims and caprice or subjective standard of trial Judge in the overall context. The depositions of prosecution witnesses are totally inconsistent with the safe administration of justice. Therefore it cannot be ruled out that weapon has been foisted upon the appellant by the police. There are so many circumstances, discussed above creating serious doubts in the prosecution case which go to the roots of the prosecution case and according to golden principle of benefit of doubt one substantial doubt would be enough for acquittal of the accused. The rule of benefit of doubt is essentially a rule of prudence, which cannot be ignored while dispensing justice in accordance with law. Conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case, must be resolved in favour of the accused. The said rule is based on the maxim “ it is better that ten guilty persons be acquitted rather than one innocent person be convicted” which occupied a pivotal place in the Islamic Law and is enforced strictly in view of the saying of the Holy Prophet (PBUH) that the “mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent”.
11. For the foregoing reasons I reached at the irresistible conclusion that evidence adduced by the prosecution falls short of disclosing the charged offence against the appellant/accused. In the circumstances, the conviction and sentence awarded to the appellant/accused is set aside. Consequently, the appellant/accused is acquitted from the charge of this case. The Superintendent Central Prison, Karachi is directed to release the appellant forthwith if he is not required in any other case.
The appeal is allowed in the above terms.
*Aamir/PS* J U D G E