IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Jail Appeal No.S-84 of 2019.
Appellant : Abdullah Brohi, through Mr. Habibullah G.
Ghouri, Advocates.
Respondent : The State, through Mr. Aitbar Ali Bullo,
Deputy Prosecutor General.
Date of hearing : 12.10.2020.
Date of Judgment : 12.10.2020.
J U D G M E N T.
Naimatullah Phulpoto-J:- Appellant Abdullah Brohi was tried by Mr.Shahid Ali Memon, Additional Sessions Judge-1 MCTC Shahdadkot for offence under Section 23(1)(a) Sindh Arms Act 2013. After full dressed trial vide judgment dated 21,09.2019 appellant was convicted in Sessions Case No. 376 of 2013 re: State v. Abdullah Brohi arisen out of Crime No.59 of 2013 of P.S B-Section Shahdadkot for offence under Section 23(1)(a) of Sindh Arms Act 2013 and sentenced to 07 years R.I and to pay fine of Rs.20,000/=, in case of non-payment of fine amount, he was ordered to further suffer S.I for six months. However appellant was extended benefit of Section 382-B Cr.P.C.
2. Brief facts of the prosecution case as disclosed in the FIR are that appellant was arrested by the police in the main case bearing Crime No.55 of 2013 registered at P.S B-Section Shahdadkot for offence under Section 302, 324, 114,34 PPC. It is alleged that during interrogation appellant prepared to produce the crime weapon used by him in the commission of main offence. Thereafter, ASI Ali Gul Khoso, Investigation Officer took appellant from police custody alongwith his subordinate PCs Dhani Bux, Ahmed Ali and others by associating private mashirs namely Rajib Ali and Lal Bux in the Government vehicle, left police station vide Entry No.13 at 1700 hours on 10.10.2013. Accused led police party to his village and voluntarily produced SBBL gun before ASI Ali Gul in presence of mashirs from the hedge of the house. It was secured by ASI Ali Gul. Accused had no license for the weapon produced by him. Mashirnama of arrest and recovery was prepared in presence of above named private mashirs. Case property was sealed at the spot. Thereafter accused and case property were brought to police station where ASI Ali Gul lodged FIR against the accused on behalf of the State for offence under Section 23(1)(a) of Sindh Arms Act 2013.
3. During investigation, the crime weapon was dispatched to the ballistic expert and positive report was received. After usual investigation challan was submitted against the accused in the main crime bearing No.55 of 2013 of Police Station B-Section under Sections 302, 324, 114, 34 PPC and so also in this offshoot case. i
4. Trial Court framed charge against the accused at Ex: 02 on 25.10.2013. Appellant/accused met charge with denial and claimed his trial. To substantiate the charge, prosecution examined P.W-1/complainant/I.O ASIP Ali Gul Khoso and PW-2/mashir Rajib Ali and thereafter closed its side at Ex:5.
5. Trial Court recorded statement of accused under Station 342 Cr.P.C at Ex:6 in which he denied the prosecution allegations. He opted to record his statement on oath and claimed his false implication in the case and foisting upon him false recovery of crime weapon by the police. However, he did not lead any evidence to disprove prosecution case against him. Learned trial Court after hearing learned counsel for the parties and considering the evidence available on record passed judgment dated 21.9.2019 convicting and sentencing the accused/appellant as stated above, hence this appeal.
6. It may be mentioned here that learned advocate for the appellant as well as learned D.P.G has pointed out that main case bearing Crime No.55 of 2013 registered with same Police Station for offence under Section 302, 324, 114, 34 PPC ended in the compromise arrived at between the parties.
7. Facts of this case as well as evidence produced before the trial Court find the elaborate mention in the judgment of trial Court. Hence, the same need not be repeated so as to avoid duplication and unnecessary repetition.
8. Learned counsel for the appellant has mainly contended that complainant/ASI Ali Gul Khoso investigation officer in his evidence failed to mention that appellant voluntarily prepared to produce weapon used by him in the commission of the offence; that no private person of the village was associated during the recovery proceedings; that entry regarding disclosure of the accused to produce the weapon during interrogation has not been produced in the evidence; that private mashir Rajib Ali did not belong to the village from which recovery was made; that safe custody of the gun and its safe transmission to the ballistic expert were not proved before the trial Court; that there was inordinate delay of 14 days in dispatch of the weapon to the ballistic expert; that neither incharge of the malkhana has been examined nor relevant roznamcha entry of the malkhana has been produced in the evidence. Lastly, it is argued that the prosecution has failed to produce some independent piece of evidence against the appellant at trial.
9. Learned D.P.G argued that evidence of the police officials is as good as of private persons; no enmity or malafide has been attributed against police officials. Learned D.P.G supported the judgment of the trial and prayed for dismissal of the appeal.
10. I have carefully heard learned counsel or the parties and scanned the entire evidence. I have come to the conclusion that prosecution has failed to prove its case against the appellant for the reasons that according to prosecution case appellant during investigation / interrogation in case under Section 302 PPC prepared to produce the crime weapon used by him in the commission of the offence but such entry/statement was not recorded by the Investigation officer. Moreover, private mashir namely Rajib Ali has admitted that he does not belong to the village from which recovery was made. ASI Ali Gul in his evidence has failed to narrate the facts regarding voluntarily production of the weapon by the accused. Investigation officer had sufficient time to call independent and respectable persons of the locality to witness the recovery proceedings but he failed to arrange them without legal justification. ASI Ali Gul had failed to mention the description of crime weapon in the evidence as well as in mashirnama of recovery. The report of the ballistic expert reveals that its number was rubbed but mashir Rajib Ali in his cross examination has clearly mentioned the description of the weapon which was shown to him before the trial Court. Omission of the investigation officer to mention description in the mashirnama of recovery as Ex:3-A would be fatal to the case of prosecution. It may be observed here that crime weapon i.e. gun was used in the commission of offence and murder was committed but it is stated that said murder case ended in compromise but from the perusal of the evidence recorded before the trial Court, in the case in hand, it transpires that prosecution failed to prove before the trial Court the safe custody of the crime weapon at the malkhana of the police station and its safe transmission to the ballistic expert. Reliance is placed upon the case reported as KAMAL DIN alias KAMALA v. THE STATE (2018 SCMR 577) in which the honourable Apex Court has held as under:
“4. As regards the alleged recovery of a Kalashnikov from the appellant’s custody during the investigation and its subsequent matching with some crime empties secured from the place of occurrence suffice it to observe that Muhammad Athar Farooq DSP/SDPO (PW18) the investigating officer had divulged before the trial Court that the recoveries relied upon in this case had been affected by Ayub, Inspector in an earlier case and thus, the said recoveries had no relevance to the criminal case in hand. Apart from that safe custody of the recovered weapon and its safe transmission to the Forensic Science Laboratory had never been proved by the prosecution before the trial Court through production of any witness concerned with such custody and transmission.”
11. No doubt, the evidence of police officials cannot be discarded simply because they belong to police force. Where, however, the fate of the accused persons hinges upon the testimony of police officials alone, it is necessary to find out if there was any possibility of securing independent persons at the time. Judicial approach has to be cautious in dealing with such evidence as held in the case of SAIFULLAH V. THE STATE (1992 MLD 984 Karachi). Relevant portion is reproduced as under:
“8. The evidence of police officials cannot be discarded simply because they belong to police force. In Qasim and others v. The State reported in PLD 1967 Kar. 233, it was held:
“A police officer is as good as witness as any other person. The standard of judging his evidence is the same on which the evidence of any other witness is judged.”
However, in a case of this nature where the fate of an accused person hinges upon the testimony of police officials alone, it is necessary to find out if there was any possibility of securing independent persons at that time. Judicial approach has to be cautious in dealing with such evidence.”
12. It would be unsafe to rely upon the evidence of police officials and one mashir Rajib Ali, who belonged to another village, without independent corroboration, which is lacking in this case. Place of recovery was also not from exclusive possession of accused. Case property was sent to expert with delay. Positive report in above circumstances will not improve prosecution case. Circumstances mentioned above created reasonable doubt in the prosecution case. It is settled law that it is not necessary that there should be many circumstances creating doubts, if there is a single circumstance which creates reasonable doubt in a prudent mind about the guilt of accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right. In this regard reliance can be placed upon the case of MUHAMMAD MANSHA V. THE STATE (2018 SCMR 772) wherein the Honourable Supreme Court has observed as follows:
“Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt, if there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim “it is better that ten guilty persons be acquitted rather than one innocent person be convicted”. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749).”
13. In my considered view, prosecution had failed to prove its case against the appellant. There are several circumstances in the case which have created reasonable doubt in the prosecution case. Appellant is entitled to benefit of doubt. Accordingly, by my short order dated 12.10.2020, I allowed the instant criminal jail appeal, acquitting the appellant/accused and setting aside his conviction and sentence awarded to him by the learned trial Court under impugned judgment dated 21.9.2019, and these are the reasons thereof.
JUDGE
shabir