HIGH COURT OF SINDH AT KARACHI
Criminal Jail Appeal No.414 of 2018
Appellant : Nizamuddin son of Roshan
through Mr. Syed Abdul Tawwab, Advocate.
Respondent : The State through Mr. Zahoor Shah, Deputy
Deputy Prosecutor General, Sindh.
None present for complainant
Date of hearing : 15.04.2019
Date of Decision : 15.04.2019
J U D G M E N T
Abdul Maalik Gaddi, J.– Appellant Nizamuddin was tried by learned IXth Additional District and Sessions Judge, Karachi (West), in Sessions Case No.100 of 2017, arising out of Crime No.370 of 2016 registered at police station Manghopir for offence under Section 23(1)(a) of Sindh Arms Act, 2013, and vide Judgment dated 23.02.2018, appellant was convicted under Section 23(1)(a) of Sindh Arms Act, 2013, and sentenced him to suffer S.I. for five (5) years with fine of Rs.20,000/- and in case of default in payment of fine, it was further ordered that appellant shall undergo S.I. for three months more. However, the benefit of Section 382-B, Cr.P.C. was also extended to the appellant.
2. Briefly, the facts of the prosecution case are that on 21.11.2016, complainant ASI Sarfaraz along with his sub-ordinate staff namely PC Ghulam Hyder, PC Niaz Hussain and PC Javed vide roznamcha entry No.23 at about 2205 hours left police station Manghopir for patrolling and at 0040 hours when they reached at Ramzan Village road, they saw two persons came to him running and they disclosed their names to police party as Ramzan Ali and Sultan and informed him that three persons robbed them by snatching cash amount as well as mobile and went away. On the pointation of Ramzan and Sultan, police chased the culprits and caught hold of them at Aman Chowk at about 0010 hours. One of the culprit made his escape good while two of them were apprehended, who disclosed their names as Yasin and Nizamuddin (present appellant). On personal search, police recovered Rs.5000/- and one Q-mobile and from present appellant, police recovered one unlicensed 30 bore pistol without number with three live rounds. As present appellant failed to produce the license of pistol, he was arrested under memo of arrest and recovery along with other accused.
3. It appears from the record that charge was framed on 27.01.2017 against the appellant by the learned trial Court, to which appellant pleaded not guilty and claimed to be tried vide his plea.
4. In order to prove the accusation against appellant, prosecution had examined PW-1/complainant ASI Sarfaraz Aiwan at Ex.4, who produced roznamcha entry of departure, memo of arrest and recovery, FIR, memo of place of incident at Ex.5 to 8 respectively; PW-2 Riaz Ahmed at Ex.9 and PW-10 Muhammad Sarwar at Ex.10, who produced letter to FSL and FSL report at Ex.11 and Ex.12 respectively. These witnesses were cross examined by the Counsel for the appellant. Thereafter, leaned DDPP closed the prosecution side vide Statement.
5. Statement of appellant was recorded under Section 342, Cr.P.C., in which he has denied the allegations as leveled by the prosecution by stating that he is innocent and has been falsely implicated in the case and the alleged recovery of pistol has been foisted upon him by the police. However, appellant neither examined himself on Oath nor led any evidence in his defence.
6. Learned counsel for the appellant has contended that that the judgment passed by the learned trial Court is perverse and the reasons are artificial, vis-à-vis the evidence on record; that the grounds on which the trial Court proceeded to convict the appellant are not supportable from evidence and documents on record. Per learned counsel, the prosecution having contradictory evidence to prove the guilt against the appellant, but trial Court without assigning any good reason convicted and sentenced the appellant. Per learned Counsel, in the instant case, there are contradictory evidence brought on record to connect the present accused with the commission of alleged offence, and all the private witnesses are interested witnesses and they have deposed against the appellant at the instance of police. Per learned Counsel, the co-accused Yasin was also arrested along with present appellant under the same mashirnama of arrest and recovery and a separate FIR bearing No.369 of 2016 at police station Manghopir under Section 392/34, PPC was registered against him. Thereafter, he was tried by learned trial Court in Criminal Case No.137 of 2017 and vide judgment dated 11.07.2017 he was acquitted from the charge, which shows that learned trial Court had already disbelieved the mashirnama of arrest and recovery. Per learned Counsel, the said judgment has not been challenged by the prosecution or complainant before any appellate forum, thus, it attained finality. Lastly, he prayed that this appeal may be allowed.
7. Conversely, learned Assistant Prosecutor General, Sindh while opposing the aforesaid contentions submitted that the prosecution has fully established its case against the appellant beyond reasonable doubt by producing consistent/convincing and reliable evidence and the impugned conviction and sentences 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 as the appellant has committed serious and heinous offence.
8. I have carefully heard the learned counsel for the parties at a considerable length and scanned the entire evidence and documents available on record.
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. After going through the record, I have come to the conclusion that prosecution has failed to prove its’ case against the appellant for the reasons that all the pieces of evidence produced by prosecution in this case are weak in nature. For instance, PW-2 Riaz Ahmed in his examination-in-chief at Ex.9 deposed that while he was sleeping at his place, accused persons kicked the door, entered inside and snatched Rs.5000/- and one mobile phone from Sultan and Rs.30,000/- with Q-mobile from him, while contradicting this fact, in cross examination, when question put to him that who had snatched Rs.30,000/-, he showed unawareness with excuse that it was too dark to recognize the accused persons. It is surprising to note that on one hand, accused persons and case properties were identified PW-2 Riaz Ahmed in his examination-in-chief and on other hand in cross examination, he had contrary version and made additions, which creates doubt in the prosecution case. PW-1/complainant in his examination-in-chief at Ex.8 by contradicting the above fact deposed that PW-2 Riaz Ahmed and Sultan informed him that Rs.13000/- was robbed/snatched from them by the accused persons. Hence, a dent has been created in the prosecution case.
11. It also appears from the record that as per FIR and memo of arrest and recovery at Ex.6 and Ex.7, one unlicensed 30 bore pistol without number along with three live rounds was allegedly recovered from the possession of the appellant, whereas, FSL report of Assistant Inspector General of Police, Forensic Division, Sindh, Karachi at Ex.12 shows that the said pistol was rubbed number. No official from Forensic Division has been examined in this case. Thus, the false implication of the appellant in this case could not be ruled out. All these aspects of the case leads to me to arrive at the conclusion that it is the case based upon number of infirmities/lacunas as well as full of doubt. When confronted all these facts to learned Assistant Prosecutor General, Sindh, he did not reply satisfactory. During the course of arguments, learned Counsel for the appellant has argued that co-accused, who was arrested along with present appellant under the same mashirnama of arrest and recovery, in a separate crime bearing FIR No.369 of 2016 registered at police station Manghopir under Section 392/34, PPC, has already been acquitted by the learned trial Court vide judgment dated 11.07.2017, in which the mashirnama of arrest and recovery was disbelieved by the trial Court. It also appears from the record that said judgment has not been challenged before any appellate forum either by the prosecution or complainant, hence, the said judgment has attained finality. When again confronted this fact to learned Assistant Prosecutor General, Sindh, he has no answered with him. It is settled principle of law that one substantial doubt would be enough for acquittal of accused. Rule of benefit of doubt is essentially a rule of prudence and any doubt arising in the prosecution case must be resolved in favour of accused. Further that ten guilty persons be acquitted rather than one innocent person be convicted as per the saying of Holy Prophet.
12. All the above circumstances have proved that neither the incident as alleged, had taken place, nor the recovery, as shown, was effected from the possession of appellant. It is settled principle of law that to extend benefit of doubt there is no necessity to gather many circumstances, but even if slightest doubt arises out of prosecution case, is sufficient to extend the benefit of doubt to the accused. In the instant case in view of the discussion whatever discussed hereinabove and the material placed before me has constrained to hold that the prosecution has miserably failed to prove its charge against the appellant beyond any reasonable shadow of doubt. Consequently, this appeal is allowed. The impugned Judgment passed by the trial Court is set-aside. Resultantly, the appellant is acquitted of the charge. Appellant is in custody, therefore, jail authorities is directed to release the appellant, if he is not required in any other case.
JUDGE
Faizan A. Rathore/PA*