THE HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No.20 of 2018
Appellant : Muhammad Sikander through Mr. Syed Lal
Hussain Shah, advocate
Respondent : The State through Mr. Sagheer Abbasi, APG
Date of hearing : 13.4.2018
Date of Judgment : 13.4.2018
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 03.01.2018 passed by the learned Additional Sessions Judge-III, Karachi (East) in Sessions Case No.1402/2015 re. State vs. Muhammad Sikandar, arises out of Crime No.96/2015 registered under Section 23(i)A Sindh Arms Act, 2013 at PS Brigade, Karachi, whereby the learned trial Court, after full dressed trial convicted and sentenced the appellant as stated in Point No.2 in the Impugned Judgment. For the sake of convenience, it would be appropriate to reproduce the Point No.2 mentioning the conviction and sentence to the appellant is as under:
“Point No.2
In the light of above discussion, I reached to the conclusion that prosecution has proved its case against the accused beyond any shadow of doubt. Therefore, I convict accused, namely; Muhammad Sikandar son of Muhammad Akhtar under Section 265-H(2) CrPC and he is sentenced to undergo S.I for two years with fine of Rs.5,000/-. In case of failure to pay fine, accused would further undergo S.I for 15 days more. The benefit of Section 382-B CrPC is also extended to the accused. The accused is present on bail, he is taken into custody and remanded to jail along with the conviction warrant with direction to the Superintendent Jail to serve out his sentence.”
2. Brief facts of the case are that on 17.04.2015, a police patrolling party of P.S Brigade being headed by S.I Zameer ul Hassan was busy in area along with his subordinate staff, namely; H.C Shiraz, H.C Aijaz, P.C Zaigham Abbas, P.C Abdul Waheed and drive P.C Aijaz, and at about 0030 hours when they reached at Preedy Street near Quaidabad Ground, Karachi saw one person present there in suspicious condition. S.I Zameer ul Hassan apprehended the said suspect who disclosed his name as Muhammad Sikandar son of Muhammad Akhtar. Thereafter S.I Zameer ul Hassan conducted his personal search on which one TT pistol 30 bore loaded with magazine containing 2 rounds live was recovered from the left hand side inner fold of his wearing clothes. Since accused failed to produce license, S.I Zameer ul Hassan sealed the recovered weapon on the spot and arrested accused under memo of arrest and recovery. Thereafter they brought the accused at PS where instant FIR was lodged against him.
3. Learned counsel for appellant has argued that the appellant is innocent and has been falsely implicated by the Police; that accused was picked up from his residence by S.I Khalid of PS Brigade on 15.4.2015 at 02:35 a.m. and kept him under illegal confinement for two days and this incident has been witnessed by Muhalla people and one of them is Amjad Ali son of Jan Muhammad, who had also appeared in this case as defence witness and supported the contention of the appellant; that the alleged recovery of pistol and bullets has been foisted upon him and despite availability of public, no independent person has been cited as witness of the event, while the alleged place of incident i.e. Preedy Street near Quaidabad ground was a populated area. Per learned counsel, the evidence so brought on record by the prosecution witnesses in this case is contradictory in nature to each other on material particulars of the case. During the course of arguments, learned counsel for appellant has taken to me towards the evidence of prosecution and highlighted the number of contradictions in between the statement of prosecution witnesses, therefore, according to him on the basis of contradictory evidence, no conviction could be maintained against the appellant. He further contended that appellant has no past criminal history and he is only the source of bread earning of his family. Therefore, under the circumstances, he prayed for acquittal of the appellant.
4. Conversely, learned Asstt. Prosecutor General Sindh for the state, while opposing the aforesaid contentions submitted that the prosecution has fully established its case against the appellant beyond reasonable doubt by producing consistent, convincing and reliable evidence and the impugned conviction and sentence awarded to the appellant is the result of proper appreciation of evidence brought on record, which needs no interference. Lastly, he prayed that the appeal may be dismissed.
5. I have heard the learned counsel for appellant and learned APG, so also gone through the documents and evidence so brought on record and after going through the record, I have come to the conclusion that prosecution has failed to prove its case against the appellant for the reasons that on the relevant date and time allegedly Police party was on patrolling duty within the jurisdiction of PS Brigade for checking purpose and during patrolling, when they reached at Preedy Street near Quaidabad ground, the present appellant was found in suspicious condition, as such, they arrested him and recovered one TT pistol of 30 bore loaded with magazine containing two rounds live from him. This fact has been denied by the appellant in his statement recorded under Section 342 CrPC and submits that in fact no incident had taken place in a fashion as alleged by the prosecution. According to the appellant, he was arrested from his house on 15.4.2015 by law enforcing agencies and kept him in wrongful confinement for two days and in this respect he has relied upon the evidence of DW Amjad Ali son of Jan Muhammad who supported the version of the appellant. It is pertinent to mention here that admittedly the Police party was on patrolling duty on the relevant date, but nothing on record to show that under which entry number, Police party left the Police Station for patrolling. Entry No.38 dated 17.4.2015 showing in the FIR pertains to only arrival of Police party at Police Station after arrest of the accused, therefore, under the circumstances, non production of entry of departure in Roznamcha of Police Station by the prosecution in Court to prove the movement of Police from the Police Station to place of recovery of weapon, cuts the root of the prosecution case, making the entire episode doubtful and the prosecution version unbelievable.
6. It is admitted by PW Muhammad Shiraz at Ex.4 and PW Zameerul Hasan at Ex.5 in their evidence that the place of incident was populated area and people were available there, but despite of this fact, no independent person of the locality has been cited as a witness in this case. In my opinion, provision of Section 103 of Cr.P.C. is mandatory in nature and cannot be ignored without any proper justification. The prime object of the above provision is to ensure the transparency and fairness on the part of police during the course of recovery, curb the false implication and minimize the scope of foisting of fake recovery upon the accused.
7. It is significant to mention that Section 34 of Sindh Arms Act, has not expressly excluded the provision of Section 103, Cr.P.C. but on the contrary, Section 34 has provided a legal cover that police officials also can act as witnesses of recovery besides the private persons. The proviso of Section 34 of Sindh Arms Act, provides that any police officer or person present on the spot can be witnessed of search and recovery, therefore, it was prime duty of the police to prefer a private witness if available at the spot to maintain transparency and fairness of the alleged recovery. It is the prime duty of Courts to ensure during the course of the administration of justice that there must be a plausible explanation for non-association of witnesses from public. Adverting to the merits of the case in hand, no valid reason or plausible explanation has been furnished by the prosecution for non-association of independent witnesses by the police when independent people were available at the place of recovery, which was a thickly populated area. Therefore, on this ground false implication of the appellant in this case could not be ruled out.
8. As per Mashirnama, it appears that handle of the alleged recovered pistol was black in colour, but the FSL report does not indicate this fact. Therefore, on this ground also tampering in the weapon could not be ruled out. I have gone through the evidence of PW Zameerul Hasan available on record as Ex.5 and according to his statement, during evidence when case property was de-sealed in open Court with the permission of the Court and it was found that the alleged pistol number was rubbed/ scratched, one side of the plastic butt is dismantled, but the FSL report and FIR showing that the alleged pistol is without number. When all these contradictions have been brought/ confronted to the learned APG, he did not reply satisfactorily.
9. Therefore, in my view, this contradiction is material one and creates doubt in the prosecution case. As observed above, in this case, the defence witness namely Amjad Ali son of Jam Muhammad has deposed that the appellant was arrested by law enforcing agencies on 15.4.2015 from his house, when the case of appellant and case of the prosecution put on juxtaposition, plea of the appellant appears to be plausible and reasonable, whereas the case of the prosecution appears to be doubtful.
10. Admittedly, in this case, there are also numbers of infirmities/lacunas, which have created serious doubt 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.”
11. 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 03.01.2018 are set-aside. Resultantly, appellant is acquitted of the charge, he is present on bail, his bail bond stands cancelled and surety is discharged.
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