HIGH COURT OF SINDH AT KARACHI
Present: Mr. Justice Abdul Maalik Gaddi
Criminal Jail Appeal No.618 of 2018
Appellant : Najeebullah son of Habibullah Khan
through Mr. Hahib-ur-Rehman Jiskani,
Advocate.
Respondent : The State through Ms. Amna Ansari,
through Additional Prosecutor General,
Sindh.
None present for complainant
Date of hearing : 17.04.2019
Date of Judgment : 17.04.2019
J U D G M E N T
1. Learned Counsel for the appellant seeks urgency on the ground that appellant is behind the bars since 2016, therefore, he may be heard. Learned Additional Prosecutor General, Sindh present in Court in other cases, raised her no objection. Under the circumstances, the instant appeal is taken up today for hearing.
2. Appellant Najeebullah was tried by learned Xth Additional District and Sessions Judge, Karachi (West), in Sessions Case No.1488 of 2016, arising out of Crime No.68 of 2016 registered at police station Sher Shah for offence under Section 23(i)(a) of Sindh Arms Act, 2013, and vide Judgment dated 30.12.2017, appellant was convicted under Section 265-H(ii), Cr.P.C., and sentenced him to suffer R.I. for five (5) years with fine of Rs.2000/-; in default in payment of fine, it was further ordered that appellant shall suffer S.I. for one month more. However, the benefit of Section 382-B, Cr.P.C. was also extended to the appellant.
3. Briefly, the facts of the prosecution case are that on 18.04.2016 at 0415 hours at street No.67, Jinnah Road Shershah, Karachi, present appellant was arrested by ASI Ghulam Hussain of police station Shershah, and recovered a pistol 9 MM black without number with a load magazine containing 02 live bullets in contravention of Section 3 of Sindh Arms Act, 2013. As such, memo of arrest and recovery was prepared on spot in presence of private mashirs Rasheed Khan and Jamshed. Hence, this FIR.
4. It appears from the record that charge was framed at Ex.2 against the appellant by the learned trial Court, to which appellant pleaded not guilty and claimed to be tried vide his plea at Ex.2/A.
5. In order to prove the accusation against appellant, prosecution had examined PW-1 Rasheed Khan at Ex.3, who produced memo of arrest and recovery, memo of vardat at Ex.3/A and Ex.3/B respectively; PW-2 ASI Raja Qadeer at Ex.4, who produced letter for FSL and FSL report at Ex.4/A and Ex.4/B respectively; PW-3 complainant ASI Mohammd Yaseen at Ex.5, who produced copy of FIR at Ex.5/A. These witnesses were cross examined by the Counsel for the appellant. Thereafter, leaned DDPP closed the prosecution side vide Statement at Ex.6.
6. 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 has been falsely implicated in the case due to non-payment of money. However, appellant neither examined himself on Oath nor led any evidence in his defence.
7. 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 cogent/convincing reason convicted and sentenced the appellant. Per learned Counsel, all the private witnesses are interested witnesses and no motive has been brought on record due to which the accused allegedly committed such offence, hence, the case of prosecution is not free from doubt and the benefit of doubt may be extended to the accused by acquit him from the charge. Lastly, he prayed that appeal may be allowed.
8. Conversely, learned Additional 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 sentence awarded to the appellant is the result of proper appreciation of evidence brought on record, which needs no interference. Lastly, she prayed that the appeal may be dismissed.
9. I have carefully heard the learned counsel for the parties at a considerable length and scanned the entire evidence and documents available on record.
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. It appears from the record that on the relevant date and time of incident, the present appellant was arrested and police allegedly recovered three mobile phones of Nokia, Samsung Lenovo touch, Q-mobile and CNIC copy in the name of Rasheed Khan from his possession, as such, memo of arrest and recovery was prepared in presence of Rasheed Khan and Jamshed, and two FIR were lodged bearing Crime No.67 of 2016, under Section 392, PPC and Crime No.68 of 2016 under Section 23(1)(a) of Sindh Arms Act, 2013, at police station Shershah, Karachi. On perusal of case file, it appears that present appellant has been acquitted in the main case under Crime No.67 of 2016 under Section 392, PPC, by the learned trial Court vide judgment dated 29.07.2017, in which complainant Rasheed Khan has not identified the present appellant, but he was convicted in instant case (crime No.68 of 2016) by the learned trial Court on the ground that in the present case, prosecution witnesses have supported the prosecution case. On perusal of evidence so brought on record, it also appears that admittedly common mashirnama of arrest and recovery was prepared in both the cases, out of which present appellant has been acquitted in Crime No.67 of 2016 (main case) registered at police station Shershah.
11. During the course of arguments, I have specifically asked the question from learned Additional Prosecutor General, Sindh that since the present appellant on the basis of same mashirnama of arrest and recovery, has been acquitted in the main case, then how the conviction in the present case can be possible. She submitted that in Crime No.67 of 2016 under Section 392, PPC, the complainant was declared hostile. Since the complainant Rasheed Khan, who was mashir in the main case, has also been shown as mashir in the present case and has been declared as hostile, then how his evidence can be believed for proving the particular facts of this case. This fact creates serious doubt in the prosecution case.
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. 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.
13. All the above circumstances have proved that neither the incident as alleged, had taken place, nor the recovery, as shown, were 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 are directed to release the appellant forthwith, if he is not required in any other case.
JUDGE
Faizan A. Rathore/PA*