IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Appeal No.S-37 of 2020
Appellant : Shoaib Mirani, through
Mr. Mohammad Afzal Jagirani, Advocate.
Respondent : The State, though
Mr. Ali Anwar Kandhro, Addl. P.G.
Date of hearing : 15-09-2022.
Date of Judgment : 15-09-2022.
J U D G M E N T.
NAIMATULLAH PHULPOTO, J.- Appellant Shoaib son of Fakir Mohammad, by caste Mirani, was tried by learned Sessions Judge, Larkana, in Sessions Case No.120 of 2020; re-The State v. Shoaib Mirani, based on Crime No.13 of 2020, registered at Police Station Market, Larkana. On the conclusion of the trial, vide judgment dated 18.04.2020 the appellant was convicted for offence under Section 23(1)(a) of Sindh Arms Act, 2013 and sentenced to suffer R.I. for 03 years and to pay fine of Rs.20,000/-; in case of default thereof to undergo S.I. for six months more. Appellant was extended benefit of Section 382-B, Cr.P.C.
2. Brief facts of the prosecution case are that on 25.01.2020, at 2020 hours, the appellant/accused, being absconder in case crime No.11/2020, u/s 392, 34, PPC of P.S Market, Larkana, was arrested by complainant ASI Ali Bux Jalbani, on a tip-off, and an unlicensed 30-bore pistol loaded with 05 bullets with rubbed number was recovered from his possession in presence of mashirs. Mashirnama of arrest and recovery was prepared by the complainant in presence of mashirs and then the accused along with recovered property was brought at police station, where FIR was registered by the complainant on behalf of State.
3. After usual investigation, challan was submitted against the appellant/accused. Case was sent up to the Court of Sessions. Trial was held by learned Sessions Judge, Larkana.
4. Trial Court framed the charge against the accused, to which he pleaded ‘not guilty’ and claimed to be tried. At the trial, prosecution examined two witnesses. They produced the relevant record. Thereafter, prosecution side was closed.
5. Learned trial Court recorded statement of accused under Section 342, Cr.P.C, in which he claimed false implication and raised plea that pistol has been foisted upon him by the police. On the conclusion of the trial, the appellant was convicted and sentenced, as stated above. Hence, this appeal has been filed.
6. Learned advocate for the appellant mainly contended that the alleged recovery was made at the backside of State Life Building, Larkana, which is a thickly populated and busy area of Larkana town and the police party had advance spy information, but no independent person was associated or picked up by the complainant without assigning sound reasons to witness the alleged recovery; that though it is deposed by the complainant that he deposited the weapon in the Malkhana of police station, but the incharge Malkhana was not examined; that the weapon wrapped in the sealed parcel was not de-sealed and was produced in Court in sealed condition in order to verify that it was the same weapon or
otherwise; that the complainant himself acted as investigation officer. It is submitted that it is easy for the police to foist such weapon upon the innocent person in order to strengthen the main case. Learned advocate for the appellant further argued that there are material contradictions in the evidence of the prosecution witnesses. It is submitted that prosecution failed to produce any evidence with regard to safe custody and safe transmission of the weapon to the Ballistics Expert. Lastly, it is submitted that the weapon has been foisted upon the appellant by the police; however, he has been acquitted in the main case by the trial Court by disbelieving the prosecution evidence.
7. Mr. Ali Anwar Kandhro, learned Additional Prosecutor General, conceded to the contentions raised by learned advocate for the appellant and did not support the impugned judgment of the trial Court, particularly in view of the fact that the appellant has been acquitted in the main case.
8. The facts of this case as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 18.04.2020 passed by the trial Court, hence the same need not to be repeated here so as to avoid duplication and unnecessary repetition.
9. I have carefully heard the learned Counsel for the parties and perused the relevant record. I have come to the conclusion that prosecution has failed to prove its case against the appellant, for the reasons that complainant ASI Ali Bux Jalbani failed to associate independent private persons as mashirs. ASI has failed to explain as to why he did not associate independent private persons as mashirs of recovery in this case, though the alleged recovery is shown to have been made at the backside of State Life Building, Larkana, which is a thickly populated and busy area of Larkana town and the police party had advance spy information. It was the duty of prosecution to prove the safe custody of the weapon at the “Malkhana” of the police station and safe transmission to the Ballistic Expert, but prosecution has failed to prove the safe custody and safe transmission of the pistol to the Ballistic Expert. Rightly reliance has been upon the case of KAMAL DIN alias KAMALA v. THE STATE (2018 SCMR 577), wherein 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.”
10. In this case, accused has raised plea that pistol has been foisted upon him by the police. In these circumstances, the prosecution evidence required independent corroboration, which is lacking in this case, particularly keeping in view the fact that the place of alleged recovery being backside of State Life Building located in the heart of Larkana town was thickly populated area and the police party had acted on the advance spy information. Complainant/investigation officer had failed to associate the independent private persons while proceeding to the place of alleged recovery and the mashirs cited in this case are subordinates to the complainant. No doubt, evidence of the police officials cannot be discarded simply because they belong to police force. Where, however, the fate of the 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 the relevant time. It would be unsafe to rely upon the evidence of the police officials without independent corroboration. 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 a 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.”
11. Appellant has been acquitted by learned Civil & Judicial Magistrate-II, Larkana in the main case registered u/s 392, 34, PPC at P.S Market, Larkana vide judgment dated 02.9.2020. 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 single 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. 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:-
“4. 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).”
12. On thorough re-evaluation of entire record, I have no hesitation to hold that the prosecution has failed to prove its case against the appellant. Resultantly, this appeal is allowed. The conviction and sentence recorded by the trial Court vide impugned judgment dated 18.04.2020 passed by the learned Sessions Judge, Larkana are set aside and appellant Shoaib Mirani is acquitted of the charge. Appellant is present on bail. His bail bonds are cancelled and surety is hereby discharged.
JUDGE
Qazi Tahir PA/*