HIGH COURT OF SINDH AT KARACHI
Criminal Appeals Nos.59 & 60 of 2019
Appellants : Syed Naveed Ali son of Syed Arshad Ali in
Criminal Appeal No.59/2019 & Mohsin son
of Mushtaq Ahmed in Criminal Appeal No.60 of 2019, through Mr. Qaim Ali Memon, Advocate.
Respondent : The State through Mr. Zahoor Shah, Deputy
Prosecutor General, Sindh.
Date of hearing : 24.04.2019
Date of Judgment : 24.04.2019
J U D G M E N T
Abdul Maalik Gaddi, J.– Through this common Judgment, I intend to dispose of the captioned appeals filed by the appellants as these appeals relate to same incident.
2. By means of these appeals, the appellants have assailed the legality and propriety of the Judgments both dated 19.01.2019 passed by the learned Additional District and Sessions Judge-VIII, Karachi (East), in Sessions Cases No.793 and 794 of 2018, emanating from Crimes No.255 and 256 of 2018, registered at police station K.I.A., Karachi, under Sections 23(1)(a) of Sindh Arms Act, 2013, whereby the learned trial Court after full dressed trial, convicted and sentenced the appellants as stated in point No.2 of the impugned judgments. For the sake of convenience, it would be advantageous to reproduce the findings of Point No.2 of the impugned judgments, which read as follows:-
“Sessions Case No.793/2018 (Syed Naveed Ali @ Naveed son of Syed Arshad Ali).
Point No.2.
24. As discussed on point No.1, this Court is of the opinion that prosecution has established the accused guilt. Accordingly, accused Syed Naveed Ali @ Naveed S/o. Syed Arshad Ali is convicted under section 265-H(ii) for the offence punishable under section 23(i)A of Sindh Arms Act, 2013, and sentenced to suffer R.I. for seven years and to pay fine of Rs.20,000/-. In case of his default, in payment of fine amount he shall further suffer S.I. for four months. He is produced in custody from Central Jail Karachi and remanded back to same jail with direction to serve the sentence, awarded by this Court. Benefit of section 382-B of Cr.P.C. is given to the accused.
Sessions Case No.794/2018 (Mohsin @ Lamba son of Mushtaq Ahmed).
Point No.2.
24. As discussed on point No.1, this Court is of the opinion that prosecution has established the accused guilt. Accordingly, accused Mohsin @ Lamba S/o. Mushtaq Ahmed is convicted under section 265-H(ii) for the offence punishable under section 23(i)(a) of Sindh Arms Act, 2013, and sentenced to suffer R.I. for seven years and to pay fine of Rs.20,000/-. In case of his default, in payment of fine amount he shall further suffer S.I. for four months. He is produced in custody from Central Jail Karachi and remanded back to same jail with direction to serve the sentence, awarded by this Court. Benefit of section 382-B of Cr.P.C. is given to the accused”.
3. Precisely the facts of the prosecution case, as unfolded in the FIRs lodged by the complainant ASI Mumtaz Ali are that on 21.04.2018, he along with his subordinate staffs namely, PC Saeed Ajmeeri, PC Adnan and PC Muneer were busy on patrolling in mobile-I, and when they reached at Nasir Jump, they received a spy information that two boys are standing at Chishtiya Masjid, Sector 32-E, Nasir Colony. On such information, at about 0115 hours, they reached at the pointed place, where they saw the appellants and upon seeing the police party, it was alleged that appellants were tried to sit on motorcycle, as such, police party encircled them. On inquiry, one person disclosed his name as Syed Naveed Ali and other person disclosed his name as Mohsin. On personal search of appellant Syed Naveed Ali, police recovered one unlicensed 30 bore pistol No.IBC-082 having black handle with four live bullets along with magazine from his possession and on personal search of appellant Mohsin, one unlicensed 30 bore numberless pistol with three live bullets along with magazine was recovered by the police. As appellants could not produce the license of the said weapons, they were arrested on spot under one memo of arrest and recovery. Thereafter, appellants alongwith weapons were brought at police station Korangi Industrial Area, where separate FIRs were lodged against each appellant.
4. The separate charges were framed on 29.08.2018 at Ex.2 against the appellants by the learned trial Court, to which they have not pleaded guilty and claimed to be tried vide their pleas at Exs.2/A and 2/B.
5. At trial, in order to establish accusation against appellant/accused, prosecution had examined following witnesses:-
(i) PW-1/Complainant ASI Mumtaz Ali at Ex.3, who produced entry No.41, memo of arrest and recovery, pistol sketch, copy of entry No.54, FIRs, site inspection memo and case properties as article-I at Ex.3/A to Ex.3/F respectively;
(ii) PW-2 PC Muneer Ahmed at Ex.4;
(iii) PW-3 ASI Umar Hayat at Ex.5, who produced copy of entry No.20, copy of entry No.26, letter to FSL and FSL report at Ex.5/A to Ex.5/D respectively;
(iv) PW PC Adnan was given up by the prosecution vide statement at Ex.6.
These witnesses were cross examined by the Counsel for the appellants. Thereafter, leaned DDPP closed the prosecution side vide Statements at Ex.7.
6. Statements of appellants were recorded under Section 342, Cr.P.C. at Ex.8, in which they have denied the allegations leveled by the prosecution against them by stating that they are innocent and nothing was recovered from them. They further stated the police demanded money from them; as they failed to fulfill the demand, police implicated them in these false cases. However, appellant/accused neither examined themselves on Oath nor led any evidence in their defence.
7. Learned trial Court after hearing the learned counsel for the parties, convicted and sentenced the appellants, as stated supra.
8. Learned counsel for the appellants has argued that complainant as well as mashirs of this case are police officials and their evidence cannot be believed without corroboration of independent evidence, which is lacking in this case; thus, according to him, there is violation of Section 103 Cr.P.C.; that nothing were recovered from them and alleged recoveries of pistols were foisted upon them after showing fake story; that the evidence of complainant and mashirs are contradictory to each other on material particulars of the case, therefore, the same cannot be safely relied upon for maintaining conviction, as such, under the above mentioned facts and circumstances, the appellants are entitled for their acquittal from the said cases and these appeals may be allowed.
9. Conversely, learned Deputy Prosecutor General, Sindh has argued that complainant as well as mashirs including investigating officer have supported the prosecution case and case is proved against the accused beyond the shadow of doubt. He has also argued that defence counsel has not been able to create any reasonable dent and defect in the prosecution case and the offence has been proved against the accused, as both accused were arrested from the spot and pistols were recovered from them in presence of mashirs namely PC Muneer and PC Adnan, who have no inimical terms with the accused; therefore, according to him, prima facie, the accused are involved in these cases, which are serious and heinous in nature.
10. I have given my anxious thoughts to the contentions raised at the bar and have gone through the evidence, documents and the impugned judgment.
11. 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.
12. After going through the record, I have come to the conclusion that prosecution has failed to prove its’ case against the appellants for the reasons that it was the case of spy information, despite this fact, complainant ASI Mumtaz Ali did not bother to associate with him any independent person of the locality from the place of information i.e. Nasir Jump, Korangi, 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 and place of incident to witness the arrest and recovery proceedings. It is alleged that when police party reached to the pointed place i.e. Ground opposite Chishtia Masjid, Sector 32/E, Nasir Colony, K.I.A., Karachi, to arrest the wanted accused; upon seeing the police party, both accused tried to sit on motorcycle and police party encircled them and on personal search police recovered the alleged pistols, but it is surprising to note that accused persons armed with sophisticated weapons, inspite of that fact, they were arrested without any resistance. Hence, a dent has been caused to the prosecution case. Therefore, false implication of the appellants in these cases could not be ruled out.
13. I have gone through the evidence and documents available on record with the able assistance of the parties’ Counsel and find the same are contradictory to each other on material particulars of the case. For instance, it is alleged in FIR No.255 of 2018 at Ex.3/E that one unlicensed 30 bore pistol bearing No.IBC-082, black handle, loaded magazine, with four live rounds was recovered from the appellant Syed Naveed Ali, whereas, mashirnama of arrest and recovery at Ex.3/B and FSL report at Ex.5/D, showing the number of pistol as IBC-062, which is quite different. Even complainant ASI Mumtaz Ali in his examination-in-chief at Ex.3 and mashir PC Muneer Ahmed at Ex.4 have also deposed the different number of alleged pistol as IBC-062. Not only this, as per FIR No.255 of 2018 at Ex.3/E, the alleged pistol has contained number as IBC-082, whereas, while contradicting this fact, PW-3 Umar Hayat, Investigating Officer of the case in his cross examination deposed that it is correct to suggest that as per FSL report, case property is rubbed number pistol. He also deposed that it is correct to suggest that rubbed number pistol was not mentioned in FIR and he does not see the pistol property; therefore, he does not know whether pistol has number or not. This fact creates a serious doubt in the prosecution case and false implication of the appellants in these cases could not be ruled out. When confronted the above contradictions in the statements of prosecution witnesses, he has no answer with him.
14. Apart from that, as per mashirnama of arrest and recovery at Ex.3/B and FIR No.256 of 2018 at Ex.3/E, one unlicensed 30 bore pistol without number, loaded magazine with three live rounds was allegedly recovered from the possession appellant Mohsin, but FSL report at Ex.5/D showing that the alleged weapon was rubbed number. Not only this, para 4 of opinion of FSL report at Ex.5/D disclosed that the alleged weapon is rifle. Furthermore, as per mashirnama of arrest and recovery at Ex.3/B and FIR No.256 of 2018 at Ex.3/E, the alleged pistol was without number, whereas, while contradicting this fact, PW-3 PC Muneer Ahmed (Mashir) in his cross examination at Ex.4, deposed that it is correct to suggest that words made in Pakistan, Cal 763 MM 130 are written on the pistol. Moreover, as per record, the alleged weapons allegedly recovered from the both appellants on 21.04.2018, but the same were received to the Office of the Assistant Inspector General of Police, Forensic Division, Sindh, Karachi, on 24.04.2018 after the delay of about three (3) days for which no explanation has been furnished by the prosecution. Moreover, the pistols 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 properties were 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 reports for conviction of the appellants on the basis of contradictory evidence. When again confronted this fact to the learned Deputy Prosecutor General, Sindh, he has no answer with him.
15. Admittedly, in these cases, 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.”
16. For the above stated reasons, while respectfully relying upon the above cited authorities, I have no hesitation to hold that prosecution has failed to prove its’ case against both appellants beyond any shadow of reasonable doubt. Consequently, these Appeals are allowed, convictions and sentences awarded by the learned Additional District and Sessions Judge-VIII, Karachi (East) vide judgments dated 19.01.2019 are set-aside. They are acquitted from the charge. Appellants Syed Naveed Ali and Mohsin shall be released from custody forthwith, if they are not wanted in any custody case.
JUDGE
Faizan A. Rathore/PA*