HIGH COURT OF SINDH AT KARACHI
Criminal Jail Appeal No.520 of 2017
Appellant : Muhammad Imran (in custody)
Respondent : The State through Mr. Sagheer Abbasi,
Assistant Prosecutor General, Sindh.
Date of hearing : 11.04.2018
Date of Judgment : 11.04.2018
J U D G M E N T
Abdul Maalik Gaddi, J.– Appellant Muhammad Imran was tried by the Court of learned IVth Additional Sessions Judge, Karachi (South), in Sessions Case No.790 of 2016 (Re: The State v. Muhammad Imran), arising out of Crime No.122 of 2015 registered at police station CTD, Karachi, under Section 23(1)(a) of Sindh Arms Act, 2013. By judgment dated 06.10.2017, the appellant was convicted under Section 265-H(ii), Cr.P.C. and sentenced him to suffer R.I. for four years with fine of Rs.20,000/-; in default of payment of fine, it was further ordered that appellant shall suffer undergo S.I. for three months more. However, the benefit of Section 382-B Cr.P.C. was also extended to the appellant.
2. The brief facts of the prosecution case leading to the filing of this appeal are that on 24.07.2015, the complainant ASI Abdul Wajid Butt lodged FIR alleging therein that he was on patrolling duty alongwith subordinate duty. It is alleged that when they reached in the jurisdiction of police station Orangi, they received spy information that one target killer duly armed is present at PSO Petrol Pump, 5 number chowrangi, Karachi. It is further alleged that on this information, they went at pointed place and apprehended said person, who upon inquiry, disclosed his name as Muhammad Imran son of Muhammad Ismail and from his possession, one 30 bore pistol alongwith three live bullets was recovered to which accused was not produced the license, as such, he was arrested and memo of of arrest and recovery was prepared on spot in presence of mashirs. Case property was sealed and, thereafter, accused alongwith case property was brought to police station. Hence, this case.
3. The charge was framed on 21.12.2015 at Ex.2 against the accused by the learned trial Court, to which he pleaded not guilty and claimed to be tried.
4. At trial, in order to establish accusation against appellant/accused, prosecution had examined following witnesses:-
(i) PW-1 SIP Muhammad Arif at Ex.3, who produced FIR, memo of arrest and recovery, memo of place of incident, letter to FSL, examination report and two entries at Ex.3/A to Ex.3/G respectively;
(ii) PW-2 HC Abdul Hakeem at Ex.4;
(iii) PW-3 complainant ASI Abdul Wajid Butt at Ex.5, who produced statement under Section 151 Cr.P.C. as Ex.5/A.
These witnesses were cross examined by the counsel for the appellant. Thereafter, leaned ADPP closed the prosecution side vide Statement at Ex.6.
5. Statement of appellant was recorded under Section 342, Cr.P.C. at Ex.7, in which he has denied the allegations as leveled by the prosecution by stating that he is innocent and nothing was recovered from him. He further stated that all the prosecution witnesses are police officials and they have falsely deposed against him at the instance of higher police officials. However, accused neither examined himself on Oath nor led any evidence in his defence.
6. It appears from the record that this jail appeal has been received on 09.11.2017 through Superintendent Central Prison, Karachi and was admitted on 24.11.2017. Today this appeal is fixed for hearing, but no one appeared on behalf of appellant, therefore, I myself perused the documents, evidence as well as the impugned judgment and the learned APG has been heard on merits of the appeal.
7. Mr. Sagheer Abbasi, learned Assistant Prosecutor General, Sindh for the State while supporting the impugned judgment argued that the prosecution has fully established its case against the appellant beyond reasonable doubt by producing consistent/convincing and reliable evidence and the conviction and sentence awarded to the appellant is the result of proper appreciation of evidence brought on record, which needs no interference. He further argued that the appellant was arrested on spot and one 30 bore pistol loaded with 03 live bullets without number was recovered from his possession, which was in working condition; that provisions of Section 103, Cr.P.C. are not applicable during search made under Sindh Arms Act, 2013, therefore, appellant could not take the benefit of non-association of private mashirs and during the course of recovery. Per learned Assistant Prosecutor General, Sindh, the offence committed by the appellant is serious and heinous in nature, thus, appellant is not entitled for any relief.
8. I have given my anxious thoughts to the contentions raised by the learned APG and have also gone through the case papers so made available before me.
9. After careful consideration and meticulous examination of the available record, suffice to say that mere heinous nature of offence is not sufficient to convict the accused because the accused continues with presumption of innocence until found otherwise at the end of the trial. It is the settled principle of law that burden is always upon the prosecution to prove the case beyond shadow of doubt. Keeping in view of this basic touchstone of criminal administration of justice, I have examined the ocular evidence as well as circumstantial evidence, alongwith impugned judgment.
10. From the perusal of record, I have come to the conclusion that the prosecution has failed to prove its’ case against the appellant for the reasons that it was the case of spy information, despite this fact, complainant/ASI Abdul Wajid Butt did not bother to associate with him any independent person of the locality from the place of information or place of incident i.e. PSO Petrol Pump, 5 number chowrangi, Orangi Town, Karachi, although, it has been brought on record that place of information was a thickly populated area. No plausible explanation was offered by the prosecution why police did not associate any independent person from the place of information or place of incident to witness the arrest and recovery proceedings. It is also alleged that police party was on patrolling and when they reached at pointed place, present appellant/accused was found in suspected condition, as such, he was arrested and police recovered one 30 bore pistol loaded with 03 live bullets without number from his possession, in presence of mashirs namely PC Abdul Hakeem and PC Khurram Abbas. It has also been brought in evidence that the place of incident is a thickly populated area, which is surrounded by houses, shops and petrol pump, despite this fact, police did not bother to associate any independent person of the locality to witness the recovery proceedings. In my view, provision of Section 103, 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.
11. 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.
12. I have also gone through the evidence of prosecution witnesses so made available on record and found the same is contradictory on material particulars of the case to each other. For instance, in the mashirnama of arrest and recovery at Ex.3/B, it reveals that one 30 bore pistol without number loaded with three live bullets, body of which was written as New Border CAL 30 Mouser, was recovered from the possession of appellant in presence of mashirs namely PC Abdul Hakeem and PC Khurram Abbas, whereas, PC Abdul Hakeem in his evidence at Ex.3, has not disclosed the proper description of the alleged weapon. Not only this, this fact is also not mentioned in the FSL report at Ex.3/E. Furthermore, it is mentioned in the memo of arrest and recovery at Ex.3/B that the alleged weapon allegedly recovered from the appellant was without number, but FSL report available on record at Ex.3/E showing that alleged weapon was rubbed number. Moreover, in the mashirnama of arrest and recovery at Ex.3/B, the allegedly recovered weapon on the body of which, the word New Border CAL 30 Mouser is mentioned, but these wording is not mentioned in the FSL report at Ex.3/E. Apart from that, as per record, the alleged weapon allegedly recovered from the appellant on 24.07.2015, but the same was received to the Office of the Assistant Inspector General of Police, Forensic Division, Sindh, Karachi, on 29.07.2015 after the delay of about five (5) days for which no explanation has been furnished by the prosecution. Moreover, the pistol and bullets were retained by whom during this intervening period has also not been explained by the prosecution that after its recoveries under whose custody, it were lying. For the sake of arguments, if it is assumed that the case property was lying in the Malkhana then no report/entry of the Malkhana has been produced to corroborate the version of prosecution. No official from Forensic Division has been examined in this case. Therefore, under the circumstances, no reliance could safely be placed on FSL report for conviction of the appellant on the basis of contradictory evidence.
13. Admittedly, in this case, there are number 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 personsis 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.”
14. 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 06.10.2017 are set-aside. Appellant is in jail, he shall be released forthwith, if he is not required in any custody case. Office is directed to send copy of this judgment to the Superintendent, Central Prison, Karachi, for information and to communicate the appellant.
JUDGE