THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.786 of 2024

  Present:       

                                                                                            Mr. Justice Shamsuddin Abbasi

Applicant                 :           Irfan son of Dost Muhammad through Mr. Ghulam      Mustafa Baloch, advocate

 

The State                       :        Through Mr. Neel Parkash, D.P.G. Sindh

Date of Hearing        :          28.04.2025

Date of Judgment      :          28.04.2025

 

JUDGMENT

 

Shamsuddin Abbasi, J.— Appellant Irfan son of Dost Muhammad Shoro was tried by learned Additional Sessions Judge-I/MCTC Thatta for offence under section under section 23(1)(a), Sindh Arms Act, 2013. On the conclusion of trial, vide judgment dated 14.11.2024 appellant Irfan was convicted under section 23(1)(a), Sindh Arms Act, 2013 and sentenced to suffer 14 years' R.I and to pay fine of Rs.50,000/-, in case of default in payment of fine, he was ordered to undergo S.I. for 03 months more. Appellant was extended benefit of section 382-B, Cr.PC.

 

2.         Brief facts leading to the filing of instant Appeal are that on 09.12.2022, SIP Bashir Ahmed Mallah, SHO PS Kinjhar Lake while patrolling in the area along with his subordinate staff received information that one person armed with gun is coming towards National Highway. Upon such information police party rushed towards the pointed place where the present appellant was apprehended at 2130 hours, single barrel gun he was carrying was taken into possession; upon inquiry he disclosed his name as Irfan son of Dost Muhammad Shoro; on his personal search seven live cartridges and Rs.300/- were recovered; he was asked about license of the gun but he failed to produce it. Accused was arrested and case property was sealed at the spot in presence of mashirs, namely, PC Muhammad Hassan and PC Amjad Ali. Thereafter, accused and the property were brought at police station and subject FIR was lodged on behalf of the State under section 23(1)(a), Sindh Arms Act, 2013. Thereafter, investigation was handed over to ASI Sher Afzal Jokhio, who completed the investigation and on the conclusion of usual investigation submitted challan against accused for offence under section 23(1)(a), Sindh Arms Act, 2013.

 

3.         A trial, prosecution examined PW-1 Muhammad Hassan, PW-2 Bashir AHmed Mallah, PW-3 Rab Nawaz, PW-4 Murad and PW-5 Sher Afzal. Thereafter, prosecution side was closed. Trial Court recorded statement of accused under section 342, Cr.PC, in which appellant claimed false implication in this case and denied the prosecution allegations and raised plea that he was arrested from Thatta City at the instance of his opponents, he is innocent, crime weapon has been foisted upon him and police has lodged false case against him. Appellant did not examine himself on oath under section 340(2), Cr.PC and led any evidence in his defence. On the conclusion of trial, learned trial Court after hearing the learned Counsel for the parties and assessment of evidence, vide judgment dated 14.11.2024 convicted and sentenced the appellant as stated above.

 

4.         The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment passed by the trial Court, therefore, same need not be reproduced here so as to avoid duplication and unnecessary repetition.

 

5.         I have heard learned advocate for the appellant, learned D.P.G. for the State, examined and assessed the prosecution evidence.

 

6.         Adverting to the recovery of unlicensed revolver from the possession of appellant, suffice to observe that incident had taken place at a busy place near Mangoes Garden, despite the complainant did not bother to associate an independent source to strengthen prosecution case by collecting any independent evidence. Thus, to that extent the contention of the learned counsel for appellant remains firmed. The manner of arrest and recovery as narrated through evidence recorded by the police officials has lost its sanctity. I am also conscious of the fact that there should some plausible explanation that actually attempts were made to associate an independent witness from the locality, when otherwise under the circumstances of the present case the appellant has pleaded his false implication and even denied his arrest as well as recovery of revolver from the place of occurrence or at the time as shown by the prosecution, hence association of an independent witness was necessary to attest the arrest and recovery proceedings, but admittedly no such efforts were made either by the complainant at the time of preparation of memo of arrest and recovery or by the investigating officer while conducting site inspection. Admittedly, the mashirs of recovery and site inspection are police officials. No explanation has been furnished by the prosecution for non-associating a private witness. The facts and circumstances of the case disclosed that there had been sufficient opportunity to the prosecution to join an independent person to witness the arrest and recovery, but no attempt was even made in this respect as such there is obvious violation of Section 103 Cr.P.C. The Hon’ble Supreme Court in the case of Tayyab Hussain Shah v The State (2000 SCMR 683) held as under:-

“The plea of the accused was that the gun had been planted on him and this fake recovery was proved by the police witnesses namely, the Investigating Officer alongwith the Foot Constable. The plea is that the said recovery is of no evidentiary value as the same was made in violation of requirements of section 103, Cr.P.C. In the case of State through Advocate­ General, Sindh v. Bashir and others (PLD 1997 SC 408) Ajmal Mian, J., as he then was, later Chief Justice of Pakistan, observed that requirements of section 103, 'Cr.P.C. namely that the two members of the public of the locality should be Mashirs to the recovery, is mandatory unless it is shown E by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public. If, however, the statement of the police officer indicated that no effort was made by him to secure two Mashirs from public, the recoveries would be doubtful. In the instant case, from the statement of the Investigating Officer it is apparent that no efforts were made to join any member of the public to witness the said recovery. In F the overall circumstances of the case, we do not find it safe to rely on the said recovery. Once recovery of gun is considered doubtful the report of the fire-arm expert that the empty statedly recovered from the spot matched with the gun loses its significance”.

7.         No doubt applicability of Section 103, Cr.P.C. is ousted as is embodied under Section 34, Sindh Arms Act, 2013, and the police witnesses are good witnesses as that of any other person from the public but when the police witness was going to charge a person for an offence which carries punishment in shape of detention then it was incumbent upon the police to associate independent persons to witness the arrest and recovery proceedings. Furthermore separate FIRs were registered for alleged recovery of revolvers, but there was a joint mashirnama, which is not inadmissible and has no legal value in the eyes of law. It is settled principle of law that every accused would be presumed to be innocent and may not be termed as criminal unless found guilty of charge by the competent Court of law after safe trial. The recovery, thus, is fatal to the case of the prosecution.

 

8.         From perusal of record it appears that all the prosecution witnesses are police officials and it is settled by now that police officials are as good witnesses as any other independent witness but proprietary of safe administration demands that there evidence must be scrutinized with care and caution. In the present case, it is alleged in the mashirnama of recovery, FIR and depositions of PW-1 PC Muhammad Hassan (Mushir) and complainant/PW Bashir Ahmed that they recovered three currency notes of Rs.100/-, totaling Rs.300/- from the front pocket of shirt of appellant but it is a matter of record that when the case property was opened in open Court, 7 currency note of Rs.100/- each were found in the envelope, which creates doubt about the safe custody of the case property and creates serious dent in the prosecution case. Another aspect of the case is that alleged gun was recovered from the possession of appellant on 09.12.2022 at 2130 hours and FIR of the alleged incident was lodged on the same date at 2230 hours, which is time of arrival of the police party at police station, which is not possible to make entry in the roznamcha entry book and lodgment of FIR at the same time. It has also come on record that prosecution has produced photostat copies of entry of malkhana and other entries on the record and failed to produce the original record before learned trial Court. Perusal of evidence PWs further revealed that PW-3 Rabnawaz had deposed that complainant handed over him one parcel, containing one Gun TT Pistol along with seven live cartridges and cash Rs.300/-. He further deposed that on 10.12.2022 PC Mureed took sealed parcel of weapon and cartridges for deposit before FSL Hyderabad and on the same day PC Mureed returned to PS and handed over him receipt of FSL whereas PW-4 PC Mureed deposed that on 12.12.2022 he went to Hyderabad and deposited the parcel with FSL Hyderabad and returned on the same day i.e.12.12.2022. Therefore, it is clear that safe custody and safe transmission of the weapon/case property was not established by prosecution at trial. I am conscious of the fact that all PWs are police officials and they must know the difference between gun and T.T. pistol despite that PW Rabnawaz deposed that he deposited Gun T.T. Pistol. It is settled principle of law that when prosecution fails to produce the evidence before the trial Court regarding safe custody and safe transmission of the weapons, then the same cannot be used against the accused for conviction. Reliance is placed upon the case reported as Kamal Din v. The State (2018 SCMR 577). Relevant portion is reproduced hereunder:-

 

       "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."

 

9.         It is settled law that for giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt in the prosecution case. If there is single circumstance creating reasonable doubt in a prudent mind about the guilt of the accused, then accused would be entitled for benefit of such doubt, not as a matter of grace and concession, but as a matter of right. In this regard, reliance is placed on the case reported as Muhammad Mansha v. The State (2018 SCMR 772), wherein the Honourable apex Court has held as under:-

       "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 circumstance which creates a 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 02 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749).

 

10.       After re-appraisal of evidence, I have come to the conclusion that trial Court failed to appreciate the evidence on sound judicial principles. At the conclusion of the arguments, by short order dated 28.04.2025, for the reasons to be recorded later on, appeal was allowed and appellant Irfan Shoro son of Dost Muhammad was directed to be released forthwith unless required to be detained in any other custody case. These are the reasons for allowing the appeal and directing the acquittal of appellant.

 

                                                                                                                        J U D G E

Gulsher/PS