HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No.163 of 2019
Appellant : Aamir son of Muhammad Khan alias
Tagial, through Mr. Muhammad Rafiq
Brohi, Advocate.
Respondent : The State through Mr. Zahoor Shah,
Deputy Prosecutor General, Sindh.
Date of hearing : 02.04.2019
Date of Judgment : 02.04.2019
J U D G M E N T
Abdul Maalik Gaddi, J.– Appellant Aamir was tried by the Court of learned Vth Additional Sessions Judge, Karachi (Central), in Sessions Case No.1092 of 2017 (re: The State v. Amir), arising out of Crime No.249 of 2017 registered at police station New Karachi Industrial Area, Karachi, under Section 24 of Sindh Arms Act, 2013. By judgment dated 25.02.2019, the appellant was convicted under Section 265-H(ii), Cr.P.C. for the offence under Section 24 of Sindh Arms Act 2013, and sentenced him to undergo R.I. for eight (8) months with fine of Rs.10,000/- and in default of payment of fine, it was further ordered that appellant shall suffer R.I. for one month more. However, the benefit of Section 382-B Cr.P.C. was also extended to the appellant.
2. The brief facts for disposal of this appeal as per prosecution case are that SIP Abdul Wahid along with other police officials were on patrolling duty and when reached at main road near bus stop No.7, New Karachi, where apprehended accused Amir son of Muhammad Khan and recovered one unlicensed 30 bore pistol without number, load magazine containing two live rounds from his possession. On demand accused failed to produce license of recovered weapon. SIP sealed weapon and prepared memo of arrest and recovery at the spot and, thereafter, accused alongwith case property were brought to police station. Hence, this case.
3. The charge was framed on 09.12.2017 at Ex.2 against the accused by the learned trial Court, to which he pleaded not guilty and claimed to be tried vide his plea at Ex.3.
4. At trial, in order to establish accusation against appellant/accused, prosecution had examined following witnesses:-
(i) PW-1 PC Abdul Zaheer at Ex.7, who produced memo of arrest and recovery and memo of inspection of site at Ex.8 and Ex.9 respectively;
(ii) PW-2 SIP Abdul Wahid at Ex.10, who produced entry No.2, FIR No.249/2017, entry No.17 and copy of FIR No.149/2017 at Ex.11 to Ex.14;
(iii) PWs PC Chanzaib and PC Nazeer Sheikh were given by prosecution vide statement at Ex.15;
(iv) PW-3 ASI Laeeq Ahmed at Ex.16, who produced entries No.18, 22, letter addressed to incharge CRMS, letter addressed to incharge FSL and its report at Ex.16/A to Ex.16/E respectively.
These witnesses were cross examined by the Counsel for the appellant. Thereafter, leaned ADPP closed the prosecution side vide Statement at Ex.17.
5. Statement of appellant was recorded under Section 342, Cr.P.C. at Ex.18, 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. Mr. Muhammad Rafiq Brohi, the learned Counsel for appellant has argued that the appellant is innocent and has been falsely implicated by the police; that the alleged recovery of pistol and bullets have been foisted upon him and despite availability of public, no independent person has been cited as witness while the alleged place of incident i.e. main road near bus stop No.7, New Karachi, is a thickly populated area. Per learned Counsel, the evidence so brought on record by the prosecution 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 to the evidence of prosecution witnesses and highlighted the number of contradictions in between them, therefore, according to him, on the basis of contradictory evidence, conviction could not be maintained against the appellant.
7. Conversely, Mr. Zahoor Shah, learned Deputy Prosecutor General, Sindh for the State has supported the impugned judgment passed by the trial Court and contended that the appellant was arrested on spot and one unlicensed 30 bore pistol loaded magazine without number with two live rounds were recovered from his possession, which was in working condition. He further contended 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. Per learned Deputy 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 at the bar and have 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 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 and documentary evidence on record, 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 police party was on patrolling duty and when they reached at main road near bus stop No.7, New Karachi, present appellant/accused was found in suspected condition, as such, he was arrested and from his possession, police recovered one unlicensed 30 bore pistol loaded magazine with two live rounds without number in presence of mashirs namely PC Abdul Zaheer and PC Nazeer Shaikh. It has also been brought in evidence that the place of incident is a thickly populated area, which is surrounded by bus stop, houses and shops, 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, PW-1 Abdul Zaheer in his cross examination at Ex.7, deposed that weapon was sealed on spot and two seals were embossed by the complainant on it, whereas, while contradicting this fact, PW-2 complainant Abdul Wahid in his cross examination at Ex.10, deposed that weapon was sealed on spot and three seals were embossed by him on it and this fact was also different in FSL report at Ex.16/E, which shows that four seals were embossed on the parcel. Not only this, in the mashirnama of arrest and recovery and FIR at Ex.12, it reveals that the alleged weapon was recovered from the possession of appellant on 09.09.2017, but the same was received to the Office of the Assistant Inspector General of Police, Forensic Division, Sindh, Karachi, on 11.09.2017 after the delay of about two (2) 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. Not only this, it is mentioned in the memo of arrest and recovery at Ex.8 and FIR at Ex.12 that the alleged weapon allegedly recovered from the appellant was without number, but FSL report available on record at Ex.16/E showing that alleged weapon was rubbed number. Therefore, under the circumstances, no reliance could safely be placed on FSL report for conviction of the appellant on the basis of contradictory evidence. During the course of arguments, it was argued by learned Deputy Prosecutor General, Sindh that appellant is also involved in other criminal cases, as such, he is not entitled for any relief. Reverting to the contentions as raised by the learned Deputy Prosecutor General, Sindh, it is suffice to say that mere pendency of the criminal cases do not ipso facto disentitled any person from any relief, if otherwise he is entitled for such relief. Nothing on record that appellant has been convicted in any case.
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 25.02.2019 are set-aside. Appellant is in jail, he shall be released forthwith, if he is not required in any custody case.
JUDGE
Faizan A. Rathore/PA*