THE HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No.480 of 2017
Appellant : Umair Ahmed is produced by Jail Authorities
Mr. Nasir Khan, advocate holds brief of Mr. Agha
Zafir, advocate for appellant .
Respondent : The State through Mr. Zahoor Shah, DPG
Date of hearing : 16.4.2018
Date of Judgment : 16.4.2018
FOR HEARING OF CASE
JUDGMENT
Abdul Maalik Gaddi, J: Through this Criminal Appeal, the appellant has assailed the legality and propriety of the Judgment dated 03.10.2017 passed by the learned IV-Additional Sessions Judge, Karachi (South) in Sessions Case No.919/2013 re. The State vs. Umair Ahmed, arises out of Crime No.348/2013 registered under Section 23-A(i) of Sindh Arms Act, 2013 at PS Kharadar, Karachi, whereby the learned trial Court, after full dressed trial, convicted and sentenced the appellant as stated in Point No.2 of the Impugned Judgment. For the sake of convenience, it would be appropriate to reproduce the Point No.2, which reads as under:
“Point No.2
In the light of above discussion, it is obvious that the prosecution has succeeded to establish its case against the present accused beyond reasonable doubt and for the foregoing reasons, as prosecution successfully proved its case against the accused Umair Ahmed S/o Niaz Ahmed. I, therefore, pass sentence U/S 265-H(ii) CrPC for the offence punishable under section 23(A)-I Sindh Arms Act 2013 and convict the accused with 05 years (Five Years) rigorous imprisonment and also imposed fine of Rs.50,000/- (rupees Fifty Thousands only) upon accused. In case of non-payment of the accused shall suffer six months more simple Imprisonment. The benefit of Section 382-B CrPC is also extended to the accused. The accused is present in Judicial custody and he is remanded to Jail along with conviction warrant with directions to the Jail Superintendent to serve out the conviction according to law.”
2. Brief facts of the case are that on 13.9.2013, at about 0155 hours, the complainant SHO/ SIP Azam Khan lodged FIR and stated that he along with subordinate staff was busy in patrolling duty. It is alleged that when he reached at near Machi Miani Market Raod, behind Madarsa Islamia School No.2, Kharadar, Karachi and after encounter arrested accused Umair Ahmed son of Niaz Ahmed and one 9MM pistol No.1252 loaded with magazine containing 05 live bullets recovered from his possession under mashirnama.
3. It appears from the record that documents were supplied to the accused under receipt required under Section 265-C CrPC as Ex.01. A formal charge was framed against appellant at Ex.02 and plea was recorded as Ex.03 in which accused plead not guilty and claimed to be tried.
4. In order to substantiate the charge against present appellant/ accused, the prosecution has examined following witnesses:
(i) PW-01 PC Abdul Sattar was examined as Ex.04, who produced memo of arrest and recovery as Ex.04/A and memo of place of incident as Ex.04/B.
(ii) PW-02 PC Ahsan Ali was examined as Ex.05.
(iii) PW-03 I.O./ ASI Muhammad Mehmood was examined as Ex.06, who produced FIR as Ex.06/A, naksha nazri as Ex.06/B, photographs of place of incident as Ex.06/C to 06/E, letter to FSL as Ex.06/F, examination report a Ex.06/G and copies of two entries as Ex.06/H and 06/I.
(iv) PW-04 PC Muhammad Saleem was examined as Ex.07.
(v) PW-05 Complainant SHO/ SIP Azam Kan was examined as Ex.08.
Thereafter, learned ADPP for the state closed the prosecution side through statement as Ex.09.
5. Accordingly, statement of appellant/ accused was recorded under Section 342 CrPC as Ex.09, in which he denied the allegation leveled against him and claimed himself to be innocent. However, he neither examined himself on oath under Section 340(2) CrPC nor produced any defence witness.
6. The trial Court after hearing the learned counsel for the parties and assessment of evidence, by Judgment dated 03.10.2017, convicted and sentenced the appellant as stated above. Hence this appeal has been filed by the appellant.
7. The facts of the case as well as evidence produced before the trial Court find and elaborate mentioned in the Judgment dated 03.10.2017 passed by the trial court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.
8. It appears from the record that on 12.4.2018, Superintendent, Central Prison, Karachi was directed to produce jail roll of the appellant, the same has been submitted by jail authorities, which is taken on record, stating therein that the sentence as awarded by the trial Court to the appellant in this case has been completed on 06.12.2017. Appellant present in custody submits that though the sentence awarded to him by the trial Court is completed on 06.12.2017, still he wishes to hear him and decide this appeal on merits, as such, he has been heard.
9. It is stated by him that the case against him is false and has been registered due to enmity; that the whole case of the prosecution rest upon the evidence of Police officials which too contradictory to each other, therefore, no conviction could be maintained on the basis of contradictory evidence; that the crime weapon was sent to Ballistic Expert for opinion after 03 days of the alleged recovery. Therefore, according to him on this ground tampering in the crime weapon by the prosecution could not be ruled out; that he has been acquitted in the main case under Crime No.347/2013 registered under Sections 353, 324 and 34 PPC of PS Kharadar; that Mashirnama of arrest and recovery showing some overwriting with regard to mobile phone Nokia number, as such under these circumstances, he has prayed his acquittal in this case.
10. Learned DPG though opposed the above submissions, as made by the appellant, but he was not able to controvert the above submissions.
11. I have heard the parties at length and perused the evidence and documents on record.
12. After careful consideration and meticulous examination of the available record, suffice to say that mere heinous nature of the offence is not sufficient to convict the accused because accused continues with presumption of innocence until found otherwise at the end of the trial. It is settled principle of law that burden is always upon prosecution to prove the case beyond shadow of doubt. Keeping in view the basic touchstone of criminal administration of justice, I have examined the ocular evidence as well as circumstantial and documentary evidence along with impugned judgment and have come to the conclusion that the prosecution has failed to prove its case against the appellant for the reasons that it appears from the record that the alleged recovery was effected from the appellant on 13.9.2013, but the crime weapon was received by the office of the Assistant Inspector General of Police, Forensic Division, Sindh, Karachi on 16.9.2013 after the delay of 03 days, for which no explanation has been furnished to the effect that during this intervening period before whom and in whose custody, the crime weapon was lying. For the sake of argument, if it was lying in the “Police Maalkhana”, no entry of Maalkhana has been produced to this effect. Therefore, on this ground tampering of the crime weapon at the hands of the prosecution could not be ruled out. It reveals from the record that this case is offshoot of Crime No.347/2013 registered under Sections 353, 324 and 34 PPC at PS Kharadar, but in the said case, the appellant has been acquitted and when this fact confronted to learned DPG, he answered in affirmative. Since the appellant has been acquitted in the main case having similar place of occurrence and recovery of empties dated 13.9.2013, therefore, on this ground also, no conviction could be maintained against the appellant in this case.
13. It appears from the record that the appellant was arrested from G. Allana Road, Machi Miani Market, near Sindh Madarsa Gate No.2, Karachi, which is surrounded by shops and houses, but police party did not associate any private person of the locality to witness the event. No doubt, the evidence of police officials is as good as private witnesses, but when the place of incident is surrounded by shops and houses, as happened in this case, non association of the private person reflected adversely. During the course of arguments, I have specifically asked the question from learned DPG as to why the prosecution did not associate any private witnesses in this case, when the place of incident is surrounded by shops and houses, he has no answer with him. During the course of arguments, I have gone through the Mashirnama of arrest and recovery available on record showing some overwriting in it with regard to mobile phone Nokia number, when this overwriting was also confronted to learned DPG with regard to mobile phone number, he again has no satisfactory answer with him. All these contradictions and lacunas in the case of prosecution lead to me that either prosecution witnesses are telling a lie or incident has not taken place in a fashion as alleged by the prosecution, which create serious doubt in the case of prosecution.
14. As observed above, in this case, there are number of infirmities/ lacunas, which have created serious doubts in the prosecution case, it is settled principle of law that for extending benefit of doubt, it is not necessary that there should be multiple circumstances creating doubt. If a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in the case of Tariq Pervez v. The State reported as 1993 SCMR 1345, wherein the Hon’ble Supreme Court has held as under:-
“The concept of benefit of doubt to an accused persons 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 a matter of grace and concession but as a matter of right.”
15. For the above stated reasons, while respectfully relying upon the above cited case law, I have no hesitation to hold that prosecution has failed to prove its’ case against the appellant beyond any shadow of reasonable doubt. Consequently, Appeal is allowed, conviction and sentence awarded by the trial Court vide judgment dated 03.10.2017 are set-aside. Appellant is in jail, he shall be released forthwith, if he is not required in any custody case.
JUDGE
asim/pa