IN THE HIGH COURT OF SINDH, CIRCUIT COURT

LARKANA

Crl. Jail Appeal No. S- 12 of 2020.

Awais Ahmed son of Mahoot alias Fayaz Khan

Jakhrani.                                                                                ……………...Appellant.

Versus

The State.                                                                               ..……….….Respondent.

            Mr. Imdad Ali Malik, Advocate for appellant.

            Mr. Aitbar Ali Bullo, Deputy Prosecutor General.

Date of hearing:                    27.04.2023.

Date of judgment:                01.06.2023.

Judgment

Zulfiqar Ali Sangi, J-. This criminal appeal is directed against judgment dated 14.01.2020, passed by learned 1^st Additional Sessions Judge, Jacobabad, in the Sessions Case No.405/2016, arisen out of Crime No.59/2016, registered with P.S Moula-dad (District Jacobabad) for offence under Section 23 (1)(a) of the Sindh Arms Act, 2013, whereby the appellant was convicted and sentenced to suffer R.I for five years and to pay fine of Rs.20,000/- and in default whereof to undergo S.I for  six months more. Benefit of Section 382-B Cr.P.C was extended to the appellant.

2.         The facts of the prosecution case as depicted from para 2 of the impugned judgment are reproduced hereunder:

“Facts of the case are per F.I.R lodged by complainant ASI Suhrab Khan Odho of P.S Mouladad are that on 28.7.2016 he along with his staff namely P.C Awal Khair, P.C Rustam Ali and P.C Ali Nawaz got out accused Mahoot alias Fayaz Khan and Awais Ahmed both by caste Jakhrani from police lockup for interrogation about the recovery of crime weapons and Indus Corolla Car used in commission of crime, who were already confined in Crime No.57/2016 under Section 302, 34 P.P.C of P.S Mouladad. It is further alleged by the complainant that during course of interrogation both accused voluntarily became ready to produce crime weapon viz. kalashnikov and DBBL gun used by them in the commission of main case/ crime. Thereafter the complainant along with his subordinate staff and both accused above named as per entry No.5 at 1000 hours left P.S in government vehicle being driven by driver P.C Noor Muhammad for recovery of crime weapons and car. It is further alleged by the complainant that when at about 1030 hours they reached near the house of accused, they got stopped the vehicle and led the police party in their house where said car was parked in courtyard of their house, from which accused took out kalashnikov with folding butt baring No.15129746 along with magazine containing 10 live bullets of 7.62 bore and DBBL gun of 12 bore lying on back seat of the said car and produced before the complainant. The accused Mahoot alias Fayaz Khan disclosed that is same kalashnikov with which he had committed murder of deceased Rizwan Ahmed Jakhrani on 24.7.2016 and accused Awais Ahmed also disclosed that it is same gun which was in his possession at the time of murder of Rizwan Ahmed on 24.7.2016. The complainant then secured and sealed the recovered kalashnikov and DBBL separately at spot. The complainant also seized one golden colour Indus Corolla Car and then prepared such memo in presence of mashirs P.C Awal Khair and P.C Rustam Ali. Thereafter, complainant brought the accused and recovered property at P.S, where he registered two separate F.I.Rs under Section 23 (1)(a) of S.A.A, against both accused on behalf of the State .” 

3.         During course of trial, charge was framed against the appellant, to which they pleaded not guilty and claimed trial. Consequently, the prosecution examined its witnesses, in following sequence:

(i)        PW-1/ ASI Suhrab Odho at Ex.5. He is complainant in the case; he produced memo of arrest and recovery; F.I.R; copies of entries and Ballistic Expert report.

(ii)        PW-2 P.C Rustam Ali at Ex.6.

4.         Then the prosecution closed its side vide Ex.7. The statement of appellant under Section 342 Cr.P.C. was recorded, in which he denied allegation of prosecution leveled against him and claimed innocence.  He, however did not examine himself on oath in terms of Subsection (2) of Section 340 Cr.P.C, nor lead any evidence in their defence in disproof of the charge.

5.         After conclusion of the trial, the learned trial Court passed the impugned judgment and awarded conviction to appellant, as stated above. The appellant has preferred instant appeal against the judgment.

6.         Learned counsel for the appellant has argued that the judgment passed by the trial Court is much against the law, facts and equity and liable to be set-aside; that the trial Court has failed to appreciate the factual as well as legal aspects of the case while convicting the appellant. He next argued that the evidence adduced by the prosecution at the trial is not properly assessed and evaluated by the trial Court and the evidence is insufficient to warrant conviction of the appellant as it was consist of only police witnesses. It is further contended by learned counsel that the trial Court has erred in concluding that the alleged recovery was effected from the accused in the mode and fashion described by the prosecution and that there are some important and vital contradictions in the evidence of the prosecution witnesses. Lastly, he has prayed for setting-aside the impugned judgment and acquittal of the appellant.

7.         Learned D.P.G. opposed the appeal on the ground that the prosecution has fully established its case by producing trustworthy ocular as well as circumstantial and documentary evidence, therefore, the appeal may be dismissed.

8.         I have heard the counsel for the parties and carefully perused the material available on record.

9.         The meticulous perusal of the evidence brought on record is entailing that all the witnesses have tried to support the case of prosecution but their evidence on deeper analysis was found unreliable coupled with material improbabilities. The broad features involved in this case are that the complainant during interrogation recovered crime weapon and Indus Corolla car used in the commission of crime, being Crime No.57/2016, and the complainant admitted during cross-examination that prior to the recovery of car and weapon they conducted raids at the house of accused, however, did not recover incriminating things.  The P.W mashir while in his examination-in-chief deposed that accused has brought the weapon from car, however, during cross-examination he stated that accused had pointed out to ASI who taken the same from the car, which raised question in every prudent mind. 

10.       Further the prosecution has failed to establish the safe custody of the crime weapon. No any witness in respect of the safe custody was examined nor was any record produced, which suggest that after the recovery where the pistol was. All these facts make the case of prosecution as doubtful. 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.       It is observed that two separate cases were tried by the trial court against accused Mahoot alias Fayyaz Khan and accused Awais Ahmed for recovery of crime weapon on their pointation.  The entire evidence of the prosecution witnesses was carefully examined and it is observed that the trial Judge has committed illegality while keeping the evidence of prosecution witnesses recorded in the one case by way of copy and paste in the other case. It is further observed that only change was at the head of page of the deposition where only the case number and other particulars were changed by the trial court otherwise the examination-in-chief and the cross-examination are same word by word including the commas and full stops.  It is settled by now that this practice of copy from the evidence of one case and paste it in the evidence of other case is illegal, unlawful and the same may be stopped.  In view of the considering facts and circumstances of the case the trial courts are directed to record the evidence of each witness separately in all the separate cases if not amalgamated in accordance with law.  It is further added that this court in case of Nakeef Nindwani v/s. The State (2022 P.Cr.L.J Note-10) has also observed as above and directions were issued.

12.       The over-all discussion arrived at conclusion 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)”.

13.       Resulting upon above discussion, I am of the judicious view that the learned trial Court has not evaluated the evidence in its true perspectives and thus arrived at an erroneous conclusion by holding present appellant as guilty of the offence. Thus, the instant criminal appeal is allowed; the conviction and sentence recorded against the appellant by way of impugned judgment could not be sustained, it is set aside and the appellant is acquitted of the charge. Appellant is directed to be released forthwith if his custody is not required in any other custody case.

Judge