IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Jail Appeal No.S-102 of 2016
Appellant : Nizamuddin son of Abdul Razaque Pahore.
Respondent : The State.
Mr. Irfan Badar Abbasi, advocate for the appellant.
Mr. Ali Anwar Kandhro, Additional Prosecutor General.
Date of hearing : 09-11-2020 and 19.11.2020.
Date of Judgment : 03-12-2020.
J U D G M E N T.
NAIMATULLAH PHULPOTO, J.- Nizamuddin Pahore appellant was tried by learned 2nd Additional Sessions Judge, Jacobabad, in Sessions Case No.83 of 2014, arising out of Crime No.03 of 2014, registered at Police Station B-Section, Thul. On the conclusion of the trial, vide judgment dated 23.09.2016 the appellant was convicted for offence under Section 23(1)(a) of Sindh Arms Act, 2013 and sentenced to suffer R.I. for 14 years. Appellant was extended benefit of Section 382-B, Cr.P.C.
2. Brief facts leading to the filing of the appeal are that on 25.01.2014 ASI Liaquat Ali Lashari along with his subordinate staff left police station in the investigation of Crime No.02/2014, during which he received spy information that accused nominated in the above crime was available at Mirzan Shakh. Police party proceeded to the pointed place, where appellant was found going armed with a gun. He was apprehended by above-named ASI. On account of non-availability of the private mashirs, he made PCs Mohammad Mithal and Anis Ahmed as mashirs and conducted search of the accused and recovered from his possession one gun and 04 live cartridges, for which he had no license. Mashirnama of arrest and recovery was prepared at spot and case property was sealed. Thereafter, accused and case property were brought at the police station, where FIR bearing Crime No.03/2014 was lodged against the accused on behalf of the State for offence under Section 23(1)(a) of Sindh Arms Act, 2013.
3. During investigation, case property/gun and 04 live cartridges were sent to the Ballistic Expert for the report. After usual investigation, challan was submitted against the accused in the main case bearing Crime No.02/2014, under Section 302, PPC as well as in the instant offshoot case. Both cases were sent up to the Court of Sessions.
4. Learned 2nd Additional Sessions Judge, Jacobabad in the main case bearing Sessions Case No.82/2014 re-State v. Nizamuddin Pahore, bearing Crime No.02/2014 of Police Station B-Section, Thul, registered under Sections 302, PPC, convicted the appellant under Section 302(b), PPC and sentenced him to imprisonment for life for committing murder of his wife, namely, Mst. Ishrat Khatoon. Appellant was ordered to pay compensation of Rs.2,00,000/- to be paid to the legal heirs of said deceased in terms of Section 544-A, Cr.P.C. Appellant preferred Criminal Jail Appeal No.S-101/2016. Appeal in the main case was admitted for regular hearing, which has been dismissed.
5. Appellant was separately tried in this case. Appellant pleaded ‘guilty’ to the charge at Ex.3. Prosecution in order to prove its case examined before the trial Court PWs mashir PC Anees Ahmed Pahore, Complainant ASI Liaquat Ali Lashari and Inspector Mohammad Raheem Bijarani. Thereafter, side of prosecution was closed. After that, trial Court recorded statement of accused under Section 342, Cr.P.C, in which he claimed false implication and raised plea that crime weapon has been foisted upon him. Appellant did not lead any defence and declined to give statement on oath. Trial Court on the assessment of evidence convicted and sentenced the appellant, as stated above. Hence this appeal.
6. It is pertinent to mention here that in the main case under Sections 302, PPC, appeal being Cr. Jail Appeal No.S-101 of 2016 filed by the appellant has been dismissed vide judgment dated 30.11.2020 and aside the conviction and sentence recorded by the trial Court has been maintained.
7. Facts of this case as well as evidence find an elaborate mention in the judgment of the trial Court, hence I avoid repetition and duplication.
8. Learned advocate for the appellant argued that crime weapon has been foisted upon the appellant; that report of the Ballistic Expert was deficient; that there was no evidence of safe custody and safe transmission of the weapon to the Ballistic Expert. Learned advocate for the appellant mainly contended that all the P.Ws are police officials and no witness from the public was associated; that there were discrepant statements of the witnesses of the recovery and absence of the protocol to validate the forensic report.
9. Mr. Ali Anwar Kandhro, learned Addl. P.G. argued that police officials are good witnesses as other witnesses unless they have the motive to falsely implicate the accused. It is submitted that protocol was observed in the preparation of the forensic report, which is mentioned in the Ballistic Expert’s report. He prayed for dismissal of the appeal.
10. I have carefully heard the learned Counsel for the parties and scanned entire evidence available on the record.
11. I have come to the conclusion that prosecution proved its case against the appellant, for the reasons that police officials, namely, mashir PC Anees Ahmed Pahore, complainant ASI Liaquat Ali Lashari and I.O. Inspector Mohammad Raheem Bijarani had no motive to foist the gun upon the appellant. It may be mentioned here that appellant has been found guilty in the main case for committing murder of his wife by means of said firearm in Crime No.02/2014, registered at P.S B-Section, Thul, for offence under Section 302, PPC. Absence of a witness from the public to support the prosecution despite availability, being symptomatic of public apathy towards civic responsibilities does not by itself shadow upon the credibility of official witnesses. Repeatedly it is held by Hon’ble Supreme Court that second to none in status, found otherwise in a comfortable unison on all the relevant details relating to the arrest, search and recovery. Criticism on forensic report Ex.6/A carries no weight as it contains relevant details of the procedure followed by the analyst to confirm that crime empties matched with the firearm. Opinion of the Ballistic Expert is reproduced as under:-
“OPINION: The Microscope examination of the case has revealed as under:
1. One 12 bore crime empty now marked as “C” was FIRED from the above mentioned 12 bore SBBL shot gun No. rubbed in question in view of the following major points i.e. striker pin marks, breech face marks, extractor marks etc are Similar.”
12. In the case of Ibrar Ullah v. The State, Hon’ble Supreme Court of Pakistan vide order dated 27.10.2020 has held as under:-
“3. We have found it somewhat difficult to persuade ourselves by the hypothesis of false implication. Admittedly, the petitioner is a resident of Peshawar; he had apparently no business to attend at the spot wherefrom he was unanticipatedly arrested. Similarly, it is difficult to contemplate his substitution to swap the real offender as the volume of cache being substantial could not be conceivably planted in the absence of a strong motive that does not appear the case. Absence of a witness from the public to support the prosecution despite availability, being symptomatic of public apathy towards civic responsibilities does not by itself shadow upon the credibility of official witnesses, repeatedly held us as second to none in status, found otherwise in a comfortable unison on all the relevant details relating to the arrest, search and recovery. Presence of a police picket has not been disputed by the defence itself. Criticism on forensic report Ex.PE carries no weight as it contains relevant details of the procedure followed by the analyst to confirm the narcotic character of the contraband; acquiesced by the defence during the trial. Belated arrangement by the petitioner of a well wisher to testify in his favour during the trial miserably failed to override positive evidence pointed towards his culpability on all fours. The said defence witness never joined police investigation and came up with a cock and bull story rather late in the day that fails to inspire confidence of even a most unsuspecting listener. Conclusions drawn by the Courts below, on our own independent analysis, have been found by us well within the remit of law, being inconsonance with the principles of safe administration of criminal justice. Petition fails. Leave declined.”
13. During trial, three police officials had appeared as witnesses. They remained firm on all major particulars of the case i.e. date, time and place of arrest and recovery of weapon from the possession of the appellant. Despite lengthy cross-examination their credibility could not be shaken. The PWs had no enmity with the appellant to falsely implicate him or foist the crime weapon upon him.
14. For what has been discussed above, the prosecution has proved its case against the appellant beyond any reasonable shadow of doubt. The appeal having no merit is accordingly dismissed.
JUDGE
Qazi Tahir PA/*