THE HIGH COURT OF SINDH AT KARACHI
Cr. Appeal No.215 of 2016
Appellant : Shan Zaib Shangri
through Mr. Taj Fareen Khan, Advocate
Respondent : The State through Mr. Sagheer Abbasi, APG
Date of hearing : 28.3.2018
Date of Judgment : 28.3.2018
1. FOR ORDERS ON M.A. NO.11972/2017
2. FOR HEARING OF MAIN CASE
JUDGMENT
Abdul Maalik Gaddi, J: Through this appeal, the appellant has assailed the legality and propriety of the Judgment dated 28.3.2016 passed by the learned II-Additional Sessions Judge, Karachi (Central) in Sessions Case No.1357/2014 re. The State vs. Shan Zaib @ Shangri emanating from Crime No.249/2014 registered under Section 23(1)A of Sindh Arms Act at PS Sharifabad, whereby 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 proper to reproduce the said Point No.2, which reads as under:
“POINT NO.02
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. I, therefore, convict the accused Shanzaib @ Shangri s/o Alam Zaib under Section 265-H(ii) CrPC for an offence under section 24 of Sindh Arms Act 2013 for keeping in possession of unlicensed pistol of 30 bore along with magazine containing one live bullet in magazine and one live bullet in chamber without number and sentence him to suffer R.I for five years and to pay a fine of Rs.10,000/- and in case of default in payment of fine he shall suffer S.I for one month more. The accused is present on bail and he is taken into custody and is remanded to Jail to serve out his sentence. However, the accused shall be entitled to the benefit of section 382-B CrPC.”
2. The facts of the prosecution case are that on 31.10.2014 at 0420 hours at Punjab Colony Block H/16, inside road F.C. Area, Sharifabad, Karachi the present accused was arrested by the police of PS Sharifabad headed by SIP Aijazuddin and one unlicensed pistol of 30 bore along with magazine loaded with one live bullet in magazine and one live bullet in chamber without number were recovered from his possession in presence of mashirs and then he along with case property were brought at PS where the complainant lodged FIR to the above effect.
3. After supplying the case paper to the accused, charge was framed against appellant/ accused at Ex.2, to which he pleaded not guilty and claimed his trial vide his plea at Ex.2/A.
4. To substantiate its assertion, prosecution examined the following witnesses:
(i) PW-1/ Mashir PC Faisal at Ex.3, who produced mashirnama of arrest and recovery at Ex.3/A;
(ii) PW-2/ complainant SIP Aijazuddin at Ex.4, who produced departure entry No.42 at Ex.4/A, arrival entry No.49 at Ex.4/B, copy of FIR at Ex.4/C and mashirnama of visit of vardat at Ex.4/D;
(iii) PW-3/ SIO/ ASI Syed Muhammad Aleem at Ex.5 who produced departure entry No.4 and arrival entry No.42 at Ex.5/A, copy of letter issued by him to FSL Karachi at Ex.5/B and FSL report at Ex.5/C.
These witnesses were cross-examined by the counsel for appellant and thereafter learned ADPP for the State closed the prosecution side vide statement at Ex.6.
5. Statement of accused was recorded under Section 342 CrPC at Ex.7, in which he has denied the allegations of prosecution leveled against him and claimed his false implication in this case. He has further stated that he has committed no offence and 10 days prior to this incident he was arrested by the police of PS Haidery from his old house situated near Muhammadpur Chowki, Tayyaba Mosque Street and brought at PS and then he was handed over to different police stations and lastly to PS Sharifabad who involved him in this false case and foisted weapon upon him. He has further stated that on enquiry the police disclosed that they were making enquiry about his involvement in other cases and when no any case was found against him then he was implicated in this false case, however, neither he examined himself on oath, nor led any sort of evidence in his defence.
6. Trial Court after hearing the learned counsel for parties by impugned judgment, convicted and sentenced the appellant as stated in Point No.2 of the Impugned Judgment.
7. It is contended by the learned counsel for appellant that the case against the appellant has been registered due to enmity; that the evidence so brought on record on behalf of the prosecution is contradictory on material particulars of the case, therefore, the same could not be safely relied upon for maintaining conviction. During the course of arguments, he has also relied upon the grounds of memo of appeal, which are as under:
a) “The impugned order is bad in law and on facts and is against the concept, scope and provision of law of Sindh Arms Act, 2013 and hence, it is liable to be set-aside. That the present applicant/accused is innocent and has falsely been implicated in this case with malafide intention by the police.
b) The learned trial Court failed to appreciate from the story narrated in the FIRs that the time of occurrence is about 4:20 am where a person with weapon is not supposed to available and as such there was no material available on record to attract provisions of Sindh Arms Act, 2013.
c) The all the PWs are police officials and thus there is no apprehension of tampering with the prosecution evidence and applicant/accused undertake to face the trial regularly.
d) That the applicant/accused is previous non convict and the appellant has been involved by the police official showing the arrest of the appellant at about 04:20 am and attempt to show their presence at the time in order to investigate some other crime which is fare beyond imagination, hence, the case against the appellant is highly doubtful and the appellant is entitled for benefit of doubt. The present case is being one fit for further inquiry, hence the applicant/accused deserve for concession of post arrest bail.
e) That no other case is pending against the present applicant/accused neither he is previously convicted.
f) That the prosecution has failed to bring on record any evidence independent and impartial to support its case beyond doubt.
g) The prosecution grossly violated provisions of Section 103 of Cr.P.C. since all witnesses appeared against the appellant are police officials to support complainant who is also a police officer. The collusions amongst the complainant and his witnesses could not be ruled out. The appellant is entitled to benefit of doubt, hence, the impugned judgment is liable to be set-aside.”
He further argued that the learned trial Court while passing the impugned judgment has ignored material contradiction in the prosecution evidence, which have made entire prosecution case as doubtful and the consideration was given to the evidence of the prosecution and passed the impugned judgment without consideration of the plea of the appellant as stated in the statement of appellant under Section 342 CrPC.
8. Conversely, learned APG while opposing the aforesaid contention submitted that prosecution has fully established its case against the appellant beyond reasonable doubt by producing consistent/ convincing and reliable evidence and the impugned conviction and the 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.
9. I have heard the learned counsel for appellant, learned APG and have gone through the evidence and documents on record.
10. After going through the record, I have come to the conclusion that the prosecution has failed to prove its case against the appellant for the reasons that in this case as per FIR one 30 bore pistol without number along with magazine loaded with one live bullet was recovered from the possession of appellant in presence of mashirs namely PC Muhammad Aleem and PC Muhammad Faisal, but examination report of weapon allegedly recovered from the appellant issued by Assistant Inspector General Police Forensic Division Sindh, Karachi dated 10.11.2014 showing that the pistol was rubbed number. During the course of arguments, I have specifically asked the question from learned APG that in FIR and mashirnama of arrest and recovery showing the alleged pistol was without number but FSL report showing the pistol number as rubbed number and there is quite difference in between them, he has no answer with him. Besides this on the back side of mashirnama of arrest and recovery available on record at Ex.3/A, a sketch which was prepared by SIP/ SIO Aijazuddin described the weapon as mouzer made as china by Norinco.
11. In view of the above contradiction, it appears that either the incident has not taken place in a fashion as alleged in the FIR or appellant has not committed any offence. It also appears from the record that the place of incident was a populated area but SI Aijazuddin did not associate any private witness to act as mashir to arrest and recovery. Nothing on record to show why the complainant did not join any independent person from the locality to witness the event, thus there is a violation of Section 103 CrPC.
12. In my opinion, provisions of Section 103 CrPC are mandatory in nature and cannot be ignored without any proper justification. Prime object of Section 103 CrPC is to ensure transparency and fairness on the part of the police during the course of recovery, curb false implication and minimize scope of foisting of fake recovery upon accused. I have gone through the Section 34 of Sindh Arms Act 2013, which has not expressly excluded provision of Section 103 CrPC and it has provided legal cover that the police official also can act as witnesses of recovery besides private persons. In this regard, I am supported with case of Shan vs. The State reported in 2015 PCrLJ 747 and Shahid Iqbal vs. The State reported in 2016 MLD 230.
13. I have also gone through the evidence so brought on record with the able assistance of the parties’ counsel and find out number of contradictions in the evidence of the prosecution witnesses on material particulars of the case. When confronted these contradictions to learned APG he has no answer with him. There is nothing on record to show that the applicant is a previous convict or has been arrested in a case of similar nature in past. Even otherwise, if the evidence of the prosecution so brought on record and the statement of the appellant recorded under Section 342 CrPC and when put both the versions on juxtaposition, the version of the appellant seems to be more plausible than the case of the prosecution, which appears to be doubtful.
14. For the above stated reasons, there are several circumstances/ infirmities in the prosecution case which have created reasonable doubt about the guilt of the appellant.
15. In case of Tariq Pervez vs. The State reported as 1995 SCMR 1345 Hon’ble Supreme Court has observed as follows:
“It is settled law that it is not necessary that there should be many circumstances creating doubts. If there is single circumstance, which creates reasonable doubt in the prudent mind about the guilt of the accused, then accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right”.
Similar view has also been taken in the case of Muhammad Akram v. The State reported as 2009 SCMR 230.
While respectfully relying upon the case laws referred to above, I have no hesitation to hold that prosecution has failed to establish its case against the appellant beyond reasonable doubt. Therefore, by extending the benefit of doubt, this appeal is allowed. The conviction and sentences recorded by the learned II-Additional Sessions Judge, Karachi (Central) vide judgment dated 28.3.2016 is set-aside. Resultantly, pending application is disposed of. Appellant is acquitted of the charge. Appellant is present on bail, his bail bond stand cancelled and surety is hereby discharged.
asim/pa