IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA
Crl. Appeal No.S- 128 of 2010
Date of Hearing: 25.7.2012
Appellant: Ghulam Mustafa Bugti through Mr.Irfan Ali Bhurgri, Advocate
Respondent: The State through Mr. Abdul Rasheed Soomro, State counsel
J U D G M E N T.
Naimatullah Phulpoto. J:- Through this appeal, appellant has called in question the judgment dated 26.11.2010 passed by learned 2nd Assistant Sessions Judge, Jacobabad in Sessions Case No.143/2010 State v. Ghulam Mustafa, crime No.58/2010 of Police Station Thul, registered under section 13 (d) Arms Ordinance, 1965 whereby appellant was convicted and sentenced for five years R.I and to pay fine of Rs.5000/-. In case of default in payment of fine it was ordered that appellant shall undergo SI for one month.
Benefit of Section 382-B, Cr.P.C was extended to the appellant.
2. Brief facts of the prosecution case as disclosed in the FIR are that on 14.3.2010 SIP Saeed Ahmed Jumani SHO PS Thul left Police Station along with his subordinate staff for patrolling duty vide roznamcha entry No.10 at 1700 hours. While patrolling at various places when SHO reached at Grid Station he started checking of the vehicles. In the meanwhile one 2.D Corrolla Car appeared on the road. It was stopped. Its registration Number was Z-7837. Present appellant was sitting on front seat of the car and he was carrying Klashnikov. SHO secured Klashnikov from his possession in presence of mashirs namely HC Khud Bux and PC Umer Din and enquired name of the accused to which he disclosed his name as Ghulam Mustafa son of Jumo. Accused had no permit/license for the weapon carried by him. From the magazine of the Klashnikov, ten bullets were recovered. During the search of the vehicle, nothing incriminating was recovered. Driver of the Car disclosed his name as Habib alias Abdul Haleem son of Dost Mohammad,. Car driver disclosed that he had no documents of the vehicle. Thereafter SHO arrested accused Ghulam Mustafa for carrying Klashnikov without permit and arrested him in presence of mashirs and lodged such F.I.R on behalf of State under section 13(d) Arms Ordinance, 1965.
3. After usual investigation challan was submitted against the accused under section 13 (d), Arms Ordinance. Case was sent up to the Court of Sessions and it was transferred to the 2nd Assistant Sessions Judge, Jacobabad where charge was framed against the accused. To the charge, appellant pleaded not guilty and claimed to be tried. In order to prove its case, prosecution examined complainant SIP Saeed Ahmed Jumani, SHO PS Thul and prosecution witnesses PC/mashir Umardin , LPC Zakir Hussain, ASI Mohammad Azeem Investigation Officer. Thereafter prosecution side was closed. Statement of the accused under section 342, Cr.PC was recorded in which he claimed false implication in this case and denied the allegations. Accused produced copy of application under Section 491, Cr.P.C filed by one Ghulam Rasool, brother of present appellant, in the Court of Sessions Judge/Ex: Officio Justice of Peace, Jacobabad. Order was passed on it. Accused examined D.Ws Ghulam Rasool and Mohammad Nawaz. Learned 2nd Assistant Sessions Judge, Jacobabad after hearing both the parties came to the conclusion that prosecution has proved its case against the appellant/accused and convicted and sentenced him as stated above. Thereafter appeal is preferred.
4. Mr. Irfan Ali Bhurgri, learned counsel for the appellant mainly contended that present accused, his brothers and father were taken into custody by SHO on 14.3.2010, who demanded bribe, on refusal, Klashnikov was foisted upon the appellant Ghulam Mustafa. Learned counsel for the appellant has referred to the copy of application u/s 491, Cr.PC and order passed by learned Sessions Judge/Ex: Officio Justice of Peace, on it. Learned counsel for the appellant has also referred to the report of the Commissioner in order to show that during raid father of the appellant and his brother were recovered from police post. It is argued that arrival and departure entries have not been produced in the Court. There are material contradictions in the evidence of complainant and P.Ws on so many material points, there were shops, hotel and Grid Station near the place of recovery and it is main road, in spite of that, no private person was called by the SHO to make him mashir in this case, Klashnikov and its bullets were not sent to the Ballistic Expert for report, investigation officer had not conducted fair investigation, no independent person of the locality was examined during the investigation and prosecution case is highly doubtful. Learned counsel has placed his reliance on the case of Riaz Hussain Kalhoro v. State (2004 P.Cr.L.J 290).
5. Mr.Abdul Rasheed Soomro, learned State counsel has argued that evidence of the police officials is as good as that of other person. No malafide has been brought on record against prosecution witnesses, contradictions are minor in nature, non production of arrival and departure entries are immaterial in this case and he supported the impugned judgment.
6. In my considered view, prosecution has failed to prove its case against the appellant/accused beyond any shadow of doubt for several reasons. Copy of application under section 491,Cr.P.C filed by the brother of appellant has been produced by appellant in his statement recorded under section 342, Cr.P.C. in which it is mentioned that on 14.3.2010 at 9-00 a.m. present appellant along with his brother Ghulam Murtaza and his father Jumo left Kandhkot town and SHO took them in police mobile from Shafique Khoso Patrol Pump and detained them at Police Station. Present appellant was challaned in 13 (d) case as father of the appellant could not fulfill his illegal demand. Surprisingly, this aspect of the case has not been discussed by the trial Court. From the minute examination of the evidence of complainant SIP Saeed Ahmed and mashir, a number of contradictions have been found particularly, with regard to the mode of recovery, shops and hotels around the place of the arrest of the accused. Prosecution could not explain such contradictions. Even for the satisfaction of the Court, arrival and departure entries were not produced before the trial Court. Investigation Officer has not conducted investigation fairly. It appears that simply he has completed the formalities. Investigation Officer failed to examine any person from the shops and hotels in order to ascertain the truth. During investigation Klashnikov and empties were not sent to the Ballistic Expert for its report. For this omission, prosecution has no reply. It is settled position of the law that if there is slightest apprehension regarding prosecution case being not true its benefit shall be extended to the accused but this case is full of doubts, there are several circumstances which create doubt in the prosecution case. Learned counsel for the appellant has relied upon the case of Riaz Hussain Kalhoro v. State reported in 2004 P.Cr.L.j 290 in which this Court has observed as under:-
“The record reveals that the K.K. rifle and seven live bullets were never sealed at all. The Station diary entry which ought to have been produced in the evidence was also not produced. The Police Officer being aware of the place to be searched well in time, but they failed to join or more responsible persons from the locality to witness the recovery and they have failed to do without furnishing any explanation in this behalf. The accused has already been acquitted in the main case and the trial Court has observed that the prosecution has failed to establish the case against the accused. The S.H.O being the Investigation Officer and complainant in the other case has disbelieved although the appellant was arrested from a house and the said is surrounded by so many other houses, but no one was joined to act as Mashir of recovery, therefore, the Investigation officer has violated the provisions of section 103, Cr.P.C.
It is an admitted position in a case reported as Muhammad Azam v. State PLD 1996 SC 67, where it was held that section 103, Cr.P.C. applies with full force when search is to be made of a place which is in an inhabited locality. As per evidence of the recovery Officer, it has come in evidence through Recovery Officer that weapon was not dispatched to the Ballistic Expert. The non-production of entry in Roznamcha by the prosecution in Court to prove the movement of police from the police station to the place of recovery of weapon cuts at the root of the prosecution case making the entire episode doubtful and the prosecution case become unbelievable.
It is well-settled proposition of law that the conviction under section 13-D, Arms ordinance could not be maintained unless the weapon allegedly recovered was sealed at the spot and the opinion of forensic/Ballistic Expert is produced on record to prove that the weapon so recovered was, in fact, functional and the said weapon fell to be a Kalashnikov. The non-association of private witnesses is also lacking in this case, as no efforts were made to join the people of public so as to comply with the mandatory provisions of section 103, Cr.P.C. as the place of recovery is surrounded by so many houses as stated by the prosecution witness.
In view of the foregoing reasons and the case-law cited by the learned counsel for the appellant, the conviction and sentence awarded to the appellant cannot be sustained, therefore, the conviction and sentence was set aside by this Court by a short order, dated 26.09.2003 and the appellant was acquitted, his appeal was allowed and these are the reasons for our short order passed in this appeal”.
7. For the aforesaid reasons and case law cited by learned counsel for the appellant I hold that prosecution has failed to prove its case against the above named appellant beyond any shadow of doubt. The conviction and sentence awarded to the appellant cannot be sustained in the law. Accordingly, appeal is allowed. Resultantly, conviction and sentence recorded by trial Court are hereby set aside. Appellant is acquitted. Bail bonds of the appellant/accused who is present on bail is discharged.
Judge