THE HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No.507 of 2017
Appellant : None present for appellant Rashid @ Rasha
Respondent : The State through Mr. Muntazir Mehdi, DPG/ Mr. Sagheer Abbasi, APG a/w ASI Nadeem Akhtar PS SITE, Karachi
Date of hearing : 05.4.2018
Date of Judgment : 05.4.2018
1. FOR ORDERS ON M.A. NO.11045/2017
2. FOR HEARING OF MAIN CASE
JUDGMENT
Abdul Maalik Gaddi, J: Through instant appeal, the appellant has challenged the Judgment dated 26.9.2017 passed by the learned IV-Additional Sessions Judge, Karachi (South) in Sessions Case No.143/2017 re. State vs. Rashid @ Rasha, arising out of Crime No.314/2011 for offence under Section 13-D Arms Ordinance registered at PS SITE-A, Karachi, whereby the learned trial Court, after full dressed trial convicted and sentenced the appellant as mentioned in Point No.2 of the Impugned Judgment. For the sake of convenience, it would be appropriate to reproduce the findings of the trial Court in Point No.2 of the said Judgment, which reads as under:
“Point No.2
For the foregoing reasons and as prosecution successfully proved its case against the accused Rashid @ Rasha S/o Muhammad Aslam. I, therefore, pass sentence U/S 265-H(ii) CrPC for the offence punishable under section 13-D Arms Ordinance and convict the accused with 04 years (four years) rigorous imprisonment and also imposed fine Rs.20,000/- (Rupees Twenty Thousands Only) upon accused. In case of non-payment of fine, the accused shall suffer three month 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 as per FIR are that on 20.5.2011 at about 2125 hours, the complainant SIP Raja Azmat Mehmood lodged FIR and stated that accused Rashid @ Rasha son of Muhammad Aslam was arrested in Crime No.313/2011, under Section 353/324/186/34 PPC of PS SITE-A and one unlicensed Kalashnikov without number along with 08 live bullets were recovered from the possession of accused under memo. Hence this FIR.
3. It appears from the record that a formal charge was framed against the appellant at Exh.04 to which he pleaded not guilty and claimed to be tried vide his plea as Exh.04/A.
4. It also appears from the record that in order to substantiate the charge against present appellant, the prosecution had examined the following witnesses:-
(i) CW-01 SIP Raja Arshad Mehmood was examined as Ex.05, who deposed before court that he received NBWs of PW PC Muhammad Aamir Belt No.18357 but the said PW has been murdered/ martyred. Another PW PC Sahar Latif also retired from police department in May 2017. He produced FIR No.758/2013 as Exh.05/A, retirement order as Ex.05/B, returned BWs as Ex.05/C and his report as Ex.05/D.
(ii) PW-01 Complainant SIP Raja Azmat Mehmood was examined as Ex.06, who produced memo of arrest and recovery as Ex.06/A, FIR No.314/2011 as Exh.06/B and memo of place of incident as Ex.06/C.
(iii) PW-02 Mashir ASI Muhammad Azaad Khan was examined as Ex.07.
(iv) PW-03 I.O./ASI Raja Arshad was examined as Ex.08.
These witnesses were cross-examined by the counsel for the appellant/ accused. Thereafter, learned ADPP for the State closed the prosecution side vide statement at Exh.09.
5. Accordingly, statement of present appellant was recorded under section 342 CrPC as Exh.10, in which he denied all the prosecution allegations leveled against him and claimed himself to be innocent. Neither he examined himself on Oath under Section 340(2) CrPC nor produced ay defence witness.
6. As observed above that none present on behalf of the appellant, therefore, learned APG has been heard and I myself with the assistance of learned DPG have gone through the case papers and evidence so made available on record, as this appeal is pending since 2017 and pertains to the offence under Section 13-D Arms Ordinance.
7. It appears from the record that the case of the appellant is based upon denial as stated in his statement under Section 342 CrPC. Learned DPG submits that this appellant is involved in number of criminal cases and he is nominated in FIR and the evidence so brought on record on behalf of the State is consistent and reliable, therefore, according to him learned trial Court has rightly convicted and sentenced the appellant.
8. It reveals from the record that the appellant was allegedly arrested on 20.5.2011 at about 2125 hours and one Kalashnikov without number along with 08 live bullets recovered from the possession of accused in presence of ASI Muhammad Azad Khan and PC Muhammad Aamir, but the names of these PWs are not mentioned in the FIR. Therefore, it appears that perhaps the Mashirnama of arrest and recovery available on record at Exh.6/A of the trial Court file, has not been prepared at spot. It is pointed out by learned APG that this appellant has been arrested on the said date and time in Crime No.313/2011 registered under Section 353 and 34 PPC of PS SITE, Karachi.
9. On close scrutiny of the case, it also reveals from the record that a joint Mashirnama of both the cases was prepared and the appellant in Crime No.313/2011 of PS SITE, Karachi (West) has already been acquitted by the learned II-Assistant Sessions Judge, Karachi (West) on 04.6.2012. The said Order/ Judgment has not been assailed/ challenged by the prosecution in the higher forum. Thus it appears that the order dated 04.6.2012 has attained the finality. Since the present appellant has been acquitted in the connected case having same Mashirnama. Therefore, under these circumstances, no conviction could be made in this case.
10. During the course of arguments, I have specifically asked the question from learned DPG whether alleged recovered weapon from the appellant was sent to Forensic Expert for examination and report. He submits that no such report is on record.
11. From the perusal of record, it also reveals that on 20.5.2011, the complainant along with his subordinate staff namely ASI Muhammad Azad Khan, PC Muhammad Aamir and PC Sahar Latif and others left police station for patrolling within the jurisdiction of police station and during patrolling, they received spy information about the availability of the appellant at bus-stop, SITE factory road, Karachi and when they reached at the pointed place, where accused allegedly opened fires upon police party and police also made fires in their defence, but as observed above this appellant has been acquitted in case of alleged firing by the trial Court on the basis of same Mashirnama. It is also surprising to note that FIR is silent about the names of witnesses. Besides this prosecution has failed to produce roznamcha entry of arrival and departure of the police party from the police station to prove whether on relevant date and time, the police party had in fact patrolled in the area or otherwise. This question creates doubt in the case of prosecution.
12. I have also gone through the evidence with the able assistance of the learned DPG and found that the evidence so brought on record is contradictory on material particulars of the case. Therefore, serious doubt apparent in the case of the prosecution. During the course of arguments, I have specifically asked the question from learned DPG that why in this matter roznamcha entry of arrival and departure of police party has not been produced and why the case property allegedly recovered from the appellant has not been sent to Ballistic Expert for its examination and report. He has no answer with him, however, he admits that this appellant has been acquitted in connected case being Crime No.313/2011 of PS SITE Karachi (West). Under these circumstances, I have come to this conclusion that prosecution has failed to prove its case against the appellant for maintaining the conviction and under these circumstances the evidence of prosecution witnesses so examined in this case cannot be safely relied upon. Learned DPG has pointed out that this appellant is involved in number of criminal cases. Therefore, he is not entitled for any relief. Reverting to the contention as raised by learned DPG, it is suffice to say that merely pendency of criminal cases against the appellant is no ground to refuse the relief, if he is entitled such relief under the law. Learned DPG has failed to point out whether the appellant is convicted in any criminal case.
13. I have gone through the case of Tariq Pervez vs. The State reported in 1995 SCMR 1345, wherein it has been held that if a single circumstance creates reasonable doubt in the prudent mind about the guilt of the accused then he will be entitled to such benefit, not as a matter of grace but as a matter of right.
14. For my above stated reasons, I have no hesitation to hold that the prosecution has failed to prove its case against the appellant and learned trial Court did not appreciate the evidence and documents on record properly. Consequently, this appeal is allowed. The impugned judgment passed by the trial Court is set-aside. Resultantly, the appellant is acquitted from the charge. He is in jail, therefore, jail authorities are directed to release the appellant forthwith, if he is not required in any other case.
15. Since the appeal is allowed, therefore, the listed application is disposed of.
asim/pa