Cr. Appeal No.S-33 of 2017

For Regular Hearing

Dates of hearing: 28 & 31.07.2017.

Date of judgment: 31.07.2017.

Mr. Alam Sher Bozdar Advocate for the appellant.

Mr. Abdul Rahman Kolachi, Deputy Prosecutor General.

J U D G M E N T

NAIMATULLAH PHULPOTO, J. Appellant Mukhtiar Ahmed was tried by learned Additional Sessions Judge, Ubauro in sessions case No.72/2015 for offences under Section 24 Sindh Arms Act, 2013, crime No.99/2015 registered at PS Ubauro District Ghotki. By judgment dated 09.03.2017 appellant was convicted under Section 24 Sindh Arms Act, 2013 and sentenced to two years R.I and to pay fine of Rs.20,000/-, in case of default he was ordered to suffer S.I for one month more. Appellant was extended benefit of section 382-B, Cr.P.C.

2. Brief facts of the prosecution case, as disclosed in the FIR, are that on 16.06.2015 accused Mukhtiar Ahmed was under arrest in crime No.91/2015 in police lock up. During interrogation of case under Section 302 PPC, it is alleged that accused prepared to produce crime weapon used by him in the commission of offence bearing crime No.91/2015 registered at PS Ubauro. ASI Hakim Ali has stated that accused led police party on 16.06.2015 to the bushes near graveyard of Shaikh Tahir. ASI had taken with him PCs Ghazanfar and Allah Wadhayo. When the police mobile reached at the graveyard, it was stopped and accused led the police party to the graveyard at 1600 hours and produced 30 bore mouser wrapped in plastic shopper from the side of one grave. It was secured by ASI in presence of above mashirs. The ASI checked and found smell of the use of the weapon. Three live bullets were also produced by the accused. Accused admitted that he had no licence for the weapon used by him in the commission of main offence. Case property was sealed at the graveyard in presence of mashirs. Since accused was already under arrest, mashirnama of recovery of crime weapon and imaginary arrest of the accused was prepared. Thereafter, accused and case property were brought to the Police Station, where ASI lodged FIR against the accused on behalf of State vide crime No.99/2015 under Section 24 Sindh Arms Act, 2013. After 08 days of the recovery of the mouser at the instance of the accused, it was sent to Forensic Science Laboratory (FSL), positive report was received. On conclusion of the investigation, challan was submitted against the accused under Section 24 Sindh Arms Act, 2013.

3. Learned Additional Sessions Judge, Ubauro framed charge against the accused at Ex.2. Accused pleaded not guilty and claimed to be tried. At the trial, prosecution examined PW-1 ASI Sohrab at Ex.4, who produced FIR at Ex.4-A, mashirnama of place of incident at Ex.4-B and FSL report at Ex.4-C. PW-2 PC Allah Wahayo at Ex.5, who produced mashirnama of imaginary arrest and recovery at Ex.5-A. PW-3 complainant ASI Hakim Ali at Ex.6. Thereafter, prosecution side was closed.

4. Statement of the accused was recorded under Section 342 Cr.P.C at Ex.8 in which accused claimed false implication in this case and denied the recovery of mouser at his instance from the graveyard. Accused raised plea that report of the Ballistic Expert has been managed by the police. Accused neither examined himself on oath in disproof of prosecution allegations nor led any evidence in his defence.

5. Learned trial Court after hearing the learned counsel for the parties and assessment of the evidence available on record, convicted and sentenced the accused as stated above. Hence this appeal is preferred by him.

6. The facts of this case as well as evidence produced before trial Court find an elaborate mention in the judgment passed by the trial Court and therefore, same may not be reproduced here so as to avoid duplication and unnecessary repetition.

7. Mr. Alam Sher Bozdar, learned counsel for the appellant contended that Photostat copies of arrival and departure entries have been produced before the trial Court and such copies are inadmissible in evidence. It is also argued that according to the prosecution case, mouser was wrapped by the accused in a plastic shopper but said shopper was not produced before the trial Court. It is also submitted that mouser was sent to the Ballistic Expert after 10 days of its recovery and positive report of the Ballistic Expert will not improve the prosecution case as it loses its sanctity on account of such delay. It is also submitted that private persons were not associated to act as mashirs of the recovery proceedings. It is further contended that the appellant has already been acquitted by learned Sessions Judge, Ghotki in the main case bearing crime No.91/2015 registered at PS Ubauro under Section 302 PPC vide judgment dated 10.09.2015. It is further contended that accused was arrested on 09.06.2015, after 07 days of his arrest during interrogation accused led the police party and produced the mouser. It is contended that such recovery was doubtful. Learned counsel for the appellant argued that according to the mashirnama of recovery dated 16.06.2015 three live bullets were produced by the appellant with mouser but according to report of Ballistic Expert, there were five live cartridges.

8. Mr. Zulfiqar Ali Jatoi, learned Additional Prosecutor General admitted that appellant has been acquitted in main case under Section 302 PPC by learned Sessions Judge, Ghotki. It has also been admitted that there was delay of 08 days in sending mouser to the FSL after its recovery at the instance of the accused. However, learned DPG submits that complainant/IO and mashirs have fully supported the prosecution case. It is further submitted that the appellant led the police party to the graveyard and produced mouser. It was sent to Ballistic Expert, positive report was received. He has supported the judgment of the trial Court.

9. I have carefully heard learned counsel for the parties and scanned the entire evidence. In my considered view prosecution has failed to establish it’s case against the appellant for the reasons that murder of one Deewanji, the brother of the complainant Gurdas was committed on 09.06.2015, such FIR was lodged against the accused Mukhtiar Ahmed and Altaf at PS Ubauro. It was recorded vide crime No.91/2015 for offence under Section 302, 34 PPC. Present accused was arrested on 09.06.2015. Co-accused Altaf was declared as proclaimed offender. After usual investigation challan was submitted in the main case as well as in the case crime No.99/2015 registered at PS Ubauro under Section 24 Sindh Arms Act, 2013. Learned Sessions Judge decided to try case/offence under Section 302, 34 PPC and transferred connected case/offshoot under Section 24 Sindh Arms Act, 2013 to Additional Sessions Judge, Ubauro. On the conclusion of the trial of the main case under Section 302 PPC, learned Sessions Judge, Ghotki vide judgment dated 10.09.2015 acquitted the accused. However, in the property order observed that mouser, 3 live bullets of 30 bore be disposed of in the terms of judgment passed in connected case under Section 24 Sindh Arms Act, 2013. Offence under Section 24 Sindh Arms Act, 2013 was connected with murder case, it was triable by Court of Sessions. It was also corroborative piece of evidence. I do not understand as to why learned Sessions Judge transferred case under Sindh Arms Act, 2013 to Additional Sessions Judge, Ubauro. It is settled principles of law that connected/offshoot if triable by Court of sessions is to be tried by same Court to avoid the conflict of the judgment. So far this appeal is concerned, according to the prosecution case, accused was arrested in the main case under Section 302 PPC on 09.06.2017. During interrogation, he led Ubauro police to graveyard and produced mouser on 16.06.2015. IO has not assigned any reason as to why he did not associate with him independent persons of the locality to witness the recovery proceedings. Recovery was made on 16.06.2015, after 08 days of it’s recovery, it was sent to the FSL for the report. Delay in sending of the crime weapon and bullets, has not been explained by the prosecution though learned defence counsel had raised plea that crime weapon has been foisted upon the accused. In this case, there are several circumstances which have created serious doubt in the prosecution case. For extending benefit of doubt several circumstances are not required as held by Hon'ble Supreme Court in the case of Tariq Pervez v. The State (1995 SCMR 1345), which reads as follows:

“The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as matter of grace and concession but as a matter of right.”

10. In view of the above, while extending benefit of doubt to the appellant, this appeal is allowed. Conviction and sentence recorded against the appellant vide judgment dated 09.03.2017 by learned Additional Sessions Judge, Ubauro are set aside. Appellant Mukhtiar Ahmed is present on bail. His bail bond stands cancelled and surety is hereby discharged. Appellant was acquitted by my short order dated 31.07.2013, above are the reasons for the said short order.

JUDGE

N.M.