IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No.S-29 of 2022.

Appellant: Khan alias Patai alias Muhammad Safar son of Faiz Muhammad by caste Panhwar

Through Mr. Waqar Ahmed Chandio, Advocate

The State:                       Through Mr.Ali Anwar Kandhro, Addl.P.G.

Date of hearing:             27-02-2023

Date of decision:             27-02-2023

JUDGMENT

ZULFIQAR ALI SANGI, J;- The instant criminal appeal impugns the judgment dated 21.05.2022, delivered by learned Assistant Sessions Judge-II, Mehar, in Sessions Case No.570/2021, emanating from FIR bearing Crime No.178/2021, for offence punishable U/S.25 of Sindh Arms Act, 2013, registered with P.S, K.N.Shah, whereby the appellant was convicted and sentenced to suffer R.I for 07 years (Seven Years) with fine of Rs.10,000/- (Ten Thousand) and in default whereof to undergo S.I for six months, with benefit of Section 382-B Cr.PC.

2.       The case of prosecution in brief is that on 30.10.2021, the present appellant/accused was arrested in injured condition in main case vide Crime No.177/2021, offence under Sections 324, 353, 398 PPC by police party of P.S K.N.Shah, led by complainant ASI Muhammad Munir. Such memo of arrest and recovery was prepared in presence of mashirs and on return to the police station, he was booked and challaned in the present case.

3.       The formal charge was framed against the present appellant/accused by learned trial Court, to which he pleaded not guilty and claimed trial.   

4.       To prove the case, the prosecution examined three witnesses i.e PW-01 Complainant/ASI Muhammad Muneer, PW-02 Mashir PC Ali Hassan and PW-03 SIO/ASI Imam Bux Khoso, who all produced certain documents and items in support of their statements. Thereafter, learned State Counsel closed the side of prosecution.

5.       Appellant/accused in his statement recorded U/S.342 Cr.PC, denied the allegations leveled against him by pleading his innocence stating therein that the case property has been foisted against him. He, however, did not examine himself on oath in disproof of the charge nor led any evidence in his defence.

6.       The learned trial Court on appraisal of the material brought on record and hearing counsel for the parties convicted and sentenced the present appellant/accused vide judgment, as detailed above.

7.       Per learned defence counsel, the instant case is false and fabricated against present appellant/accused; that the evidence of complainant, SIO and mashir being contradictory have no credibility and thus cannot be relied upon without independent corroboration; that the recovery of alleged crime weapon with bullets has been foisted against appellant/accused just to strengthen the main case relating to police encounter. Summing up his contentions, he submits that case of prosecution is doubtful and has no foundation against the appellant/accused, therefore, he deserves to be acquitted in the circumstances of case.

8.       In rebuttal to above, learned Addl.P.G for the State contends that all the witnesses have fully supported the case of prosecution and no major contradiction is noticed in their evidence; that the recovery of crime weapon on analysis has substantiated the involvement of present appellant/accused in the commission of offence; that the FSL report has fully supported the case of prosecution. Lastly, he  submitted that the learned trial Court finding the appellant/accused guilty of the offence has rightly convicted and sentenced him by way of impugned judgment which calls for no interference by this Court, therefore, the appeal filed by him being devoid of merits is liable to be dismissed.

9.       Heard arguments of learned counsel for the parties and have minutely gone through the material made available on record with their able assistance.

10.     The careful re-assessment of evidence produced by the prosecution reflects that all three witnesses have tried to substantiate arrest of present appellant/accused in injured condition together with recovery of an unlicensed pistol and bullets from him but their evidence when analyzed deeply was found coupled with material infirmities. In that, the complainant in his cross examination stated that injury of present accused was tied with cloth present in police mobile and that he himself conducted his personal search but his version is belied by his own mashir PC Ali Hassan who in his cross examination stated that his injury was tied with towel of police constable and that his personal search was conducted by complainant ASI Munir. Complainant further added that memo of arrest was written by PC Rehmatullah under his dictation and that he himself sealed the recovered pistol and affixed three seals while mashir in his cross examination stated that ASI prepared memo of arrest and recovery while sitting and that ASI Munir Ahmed sealed the pistol and bullets and affixed two seals. Moreover, the complainant in his cross examination stated that the contents on sealed parcel alongwith crime number were written at the place of incident but it is somewhat astonishing that when the complainant after setting out left one ASI namely Abdullah Joyo as incharge of police post then through what resource he came to know about the exact crime number of present case left for him to be mentioned over the parcel of recovered case property. This piece of evidence is quite ridiculous and do not appeal to the judicial certainty which apparently has led the claim of arrest of accused and recovery from him to be under a cloud. In addition to this, despite the place of occurrence situated on road near Curve of Bahadur Pur which was frequented by traffic and public yet no any passerby there-from was taken to act as mashir/witness. In fact no effort was made to take some-one from the public, which was in clear violation of mandatory provisions of Section 103 Cr.PC. Moreover, the present accused after his arrest in injured condition was immediately shifted to hospital for treatment but the prosecution failed to examine the medical officer, for no obvious reason. Further, it is suffice to say that the recovered pistol with bullets was dispatched to the Forensic Laboratory ten days after its recovery, for which no any satisfactory explanation has been furnished that as to where it was kept for such intervening period which too has made ballistic report to be questionable, nor the official who took the same to the Laboratory was examined by the prosecution. Furthermore, no entry relating to keeping of the recovered case property at Malkhana was brought on record to establish the claim of prosecution. The reliance in this context is placed upon case of Muhammad Amir and others V. The State (2020 MLD 1777), wherein the Division Bench of this Court has held as under;-

13.       It is further observed that as per record, the weapons allegedly recovered from the appellants on 29.06.2019, but the same were received to the office of the Assistant Inspector General of Police, Forensic Division, Sindh, Karachi, on 02.07.2019 after delay of about two (2) days for which no explanation has been furnished by the prosecution. Moreover, the pistols and bullets were retained by whom during this intervening period has also not been explained by the prosecution. For the sake of arguments, if it is assumed that the case property was lying in the Malkhana then no report/entry of the Malkhana has been produced to corroborate the version of prosecution. No official from Forensic Division has been examined in this case. I.O. nowhere has deposed about safe custody of the empties and pistol at Police Station and their safe transmission to the Ballistic Expert, as such positive report of FSL would not improve the case of prosecution. Law is well-settled by now that prosecution is under legal obligation to prove the safe custody of the recovered weapon and its safe transmission to the Forensic Science laboratory as held by the honourable Supreme Court in the case of Kamal Din alias Kamala v. The State (2018 SCMR 577). In the present case appellant Amir received injury whereas neither any police personnel or police mobile received any bullet when it is asserted by P.W PC Mubarak Ali that accused made straight fires upon them from front side. Based on the evidence led, we are of the view that the prosecution story regarding a police encounter does not appeal to logic and the benefit of the doubt must go to the accused.

11.     From the above discussion it appears that the prosecution has miserably failed to prove the guilt against present appellant beyond shadow of any reasonable doubt and it is a well-settled principle of law that for creating the shadow of a doubt, there should not be many circumstances. If a single circumstance creates reasonable doubt in the prudent mind, then its benefit is always extended in favour of the accused not as a matter of grace or concession, but as a matter of right. In this respect reliance is placed on the case of Muhammad Mansha v. The State (2018 SCMR-772), wherein the Hon’ble Supreme Court of Pakistan has held that:-

“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 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.     Whatsoever has been discussed, I am of the humble view that the learned trial Court has not properly assessed the evidence in its true perspectives and thus arrived at an erroneous conclusion by holding present appellant as guilty of the offence. Thus, the conviction and sentence recorded against him by way of impugned judgment could not be sustained, it is set aside. Consequently, the appellant was acquitted of the charged offence.  

13.     Above are the reasons of my short order dated 27.02.2023 whereby the instant criminal appeal was disposed of accordingly.

    JUDGE

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