HIGH COURT OF SINDH AT KARACHI

 

Criminal Appeal No. 643 of 2018

 

 

Appellant             :         Asif Ali s/o Usman Ali through

                                      Mr. Muhammad Zafar Ahmed, Advocate  

 

Respondent          :         The State through Ms. Rubina Qadir, Deputy

                                      Prosecutor General Sindh

 

Date of hearing     :        26.4.2019

 

Date of Judgment :        26.4.2019

 

 

J U D G M E N T

 

 

Abdul Maalik Gaddi, J.–   Appellant Asif Ali was tried by the Court of learned II-Additional Sessions Judge, Karachi (South), in Sessions Case No.816 of 2018 (Re: The State v. Asif Ali), arising out of Crime No.58 of 2018 registered at police station Artillery Maidan, Karachi (South), under Section 23(1)(a) of Sindh Arms Act, 2013. By judgment dated 23.11.2018, the appellant was convicted under Section 265-H(ii), Cr.P.C. and sentenced him to suffer R.I. for two years with fine of Rs.5,000/-; in default of payment of fine, it was further ordered to 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.                 Brief facts of the prosecution case narrated in the FIR lodged by complainant/ ASIP Akmal Satti are that he along with his police party was on patrolling duty between night of 28th & 29 of July, 2018, during which they reached at Khaleel Shaheed Road Opposite Uzma Apartment, Civil Line, Karachi, at about 0600 hours and found a suspect going having plastic bag, therefore, he was apprehended. On enquiry, he disclosed his name as Asif Ali son of Usman Ali and due to non-availability of private witnesses, said bag having in his hand was searched which was containing one 12 bore repeater bearing C-701 PAC loaded with two live cartridges. From personal search of the accused, two mobile phones, original CNIC and cash Rs.200/- were also secured. It was further stated by the complainant/ ASIP that on demand, the accused could not produce license of the recovered repeater.

 

3.                 It appears from the record that charge was framed against the appellant at Exh.2, to which he pleaded not guilty and claimed trial of the case vide his plea at Exh.2/A.

 

4.                 In order to substantiate the charge against present accused, the prosecution has examined the following witnesses:

(i)                PW-01/ASIP/Complainant Akmal Satti at Exh.03, who produced departure entry at Exh.03/A, memo for arrest/ recovery at Exh.03/B, FIR along with its entry at Exh.03/C & 03/D and memo for site inspection at Exh.03/E.

(ii)             PW-02/PC Malik Muhammad Ilyas at Exh.04, who being mashir for arrest/ recovery and site inspection testified such memos already produced by the complainant/ ASIP, to be the same.

(iii)           PW-03/SIP Muhammad Akram at Exh.06, who being IO of the case produced two entries regarding site inspection at Exh.06/A & 06/B and a receiving copy of his letter moved to FSL along with its report at Exh.06/C & 06/D.

 

These witnesses were cross-examined by the counsel for appellant. Thereafter, learned DDPP for the State closed the prosecution side vide statement at Exh.07.

 

5.                 Statement of accused was recorded under section 342 CrPC at Exh.08, in which he denied the allegations leveled against him and claimed himself to be innocent. However, accused neither examined himself on oath U/s 340(2) CrPC nor produced any defence witness.

 

6.                  Learned trial Court after hearing the parties passed the impugned judgment.

 

7.                 It is argued by learned counsel for appellant that the case against appellant is false and has been registered with malafide intention of the complainant and according to him in fact the appellant has not committed any offence as stated in the FIR, but according to him the appellant was taken into custody by the law enforcing agencies one month back prior to this incident and thereafter the local police involved him in this case. He further submits that in this case the evidence of the prosecution witnesses is contradictory to each other on material particulars of the case in respect of the alleged recovery. During the course of arguments he has read the evidence of the prosecution witnesses and pointed out number of contradictions with regard to number of the weapon as well as descriptions of the weapon as stated in FIR, hence he was of the view that in the light of contradiction, no conviction could be sustained. He further submits that the alleged incident took place in the morning at about 06:00 a.m. at Uzma Apartment, Civil Lines, Karachi, but despite of availability of private witnesses, no private witness has been cited in the memo of recovery and this fact creates doubt in the prosecution case; that the applicant having no past criminal history, therefore, under the aforementioned facts and circumstances, he prayed that the accused may be acquitted from the charge.

 

8.                 Learned Deputy Prosecutor General has supported the impugned judgment by arguing that the impugned judgment is perfect in law and on facts and the learned trial Court while passing the impugned judgment has not committed any gross illegality or irregularity and the prosecution witnesses have supported the prosecution case.

 

9.                 I have heard the learned counsel for parties and have gone through the case papers so made available before me.

 

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 on the relevant date and time when police party was on patrolling duty and during patrolling when they reached at Khalil Shaheed Road, Opposite Uzma Apartment, Civil Lines, Karachi, it was 06:00 a.m. and the appellant being suspect was arrested and during his personal search one 12 bore repeater bearing No.C-701 PAC was recovered from his possession. It has come on record that the incident took place in morning time and the place of arrest of the appellant was a populated area, but the complainant of the case did not bother to cite any independent person of the locality from the place of incident. No plausible explanation was offered by the prosecution why police did not associate any independent person from the place of incident to witness the arrest and recovery proceedings. In my view, provision of Section 103 of 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 of 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 gone through the evidence of prosecution witnesses along with documents with the able assistance of the parties’ counsel and found the same is contradictory on material particulars of the case. For example, as per challan sheet in property column, it is mentioned that one 12 bore repeater bearing No.C-701 PAC with load magazine two live cartridges and two mobile phones with (1) Nokia 1133 black colour and (2) Nokia 206 white colour were allegedly recovered from the possession of appellant. Whereas complainant ASI Akmal Satti in his evidence deposed that the colour of both mobile phones was ‘black’. It is also mentioned in the property column that 12 bore repeater bearing No.C-701 PAC with load magazine two live cartridges were also recovered, but nothing mentioned in FSL report with regard to magazine. Not only this, it is stated in the FSL report in Opinion column that its system of firing is Pump action but this system is not provided in the repeater which falsify the case of the prosecution.

 

13.            Apart from this, as per FIR and memo of arrest and recovery, it is mentioned that the appellant was carrying illegal weapon in the plastic bora, whereas the complainant in his evidence contradicted this fact and deposed that appellant was carrying big plastic shopper and during the evidence, when the property was de-sealed neither the plastic bora nor big plastic shopper was available. All these facts lead to me to reach the conclusion that the case of prosecution based upon contradictory evidence on material particulars. During the course of arguments, when these contradictions were brought to the notice of learned Deputy Prosecutor General to explain the position, she has no satisfactory answer with her. As such benefit of the abovementioned contradiction goes in favour of the appellant.

 

14.            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 persons is 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.”

 

 

15.            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 23.11.2018 are set-aside. Appellant is acquitted from the charge. Appellant is on bail, his bail bond is cancelled and surety stands discharged.

JUDGE

 

 

asim/pa