IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Criminal Appeal No. S- 38 of 2014

Present:- Naimatullah Phulpoto, J

 Appellant       : Ahmed Ali son of Raza Mohammad Jatoi, through Mr.Ghulam Murtaza Jokhio, Advocate. 

Respondents: The State through Mr. Khadim Hussain Khooharo, DPG.

Date of Hearing : 02.03.2015

JUDGMENT

Naimatullah Phulpoto,J:. Appellant Ahmed Ali Jatoi was tried by learned Vth Additional Sessions Judge, Larkana for offence under Section 23(I) of Sindh Arms Act, 2013  in Crime No.61/2013 Police Station Civil Line, Larkana vide judgment dated 18.12.2014 appellant was sentenced to 06 years R.I. and to pay fine of Rs.20,000/- , in case of default in payment of fine it was ordered that accused shall suffer SI for six month more. Appellant was extended benefit of section 382-B, Cr.P.C.

2.         By this appeal, the appellant has challenged his conviction and sentence as stated above.

3.         The brief facts of the prosecution case as disclosed in the F.I.R are that on 10.6.2013 ASI Sajjad Hussain of Police Station Civil Line, Larkana left Police Station along with his subordinate staff,  namely, PCs Khalid Hussain and Mohammad Rafique in the Government vehicle for patrolling duty. Police party while patrolling at various places reached near Municipal Stadium at 0100 hours where on the headlight of the vehicle police party they saw one person standing at the gate of the Municipal Stadium. The appellant while seeing the police tried to run away but he was surrounded and caught hold. As it was night time police officer could call private persons. After accused was arrested in presence of mashirs PCs Khalid Hussain and PC Mohammad Rafique, his name was enquired, to which he disclosed his name as Ahmed Ali son of Raza Mohammad by caste Jatoi. Said accused was required in Crime No. 59/2013 under sections 392, 34, PPC at Police Station Civil Line, Larkana. After arrest of the accused in the aforesaid crime his search was conducted. During search one pistol of 30 bore without license was recovered from his possession along with 04 live bullets. Since accused had no license for the said weapon, he has brought to the police station and F.I.R under section 23 (I) of the Arms Act was lodged.

4.         A formal charge was framed against appellant Ahmed Ali at Ex.2 and he was asked whether he pleads guilty or he claims to be tried. Appellant pleaded not guilty and claimed to be tried.

5.         At the trial, prosecution examined PC Khalid Hussain at Ex.4, he produced mashirnama of arrest and recovery at Ex.4/A and mashirnama of place of wardat at Ex.4/B, complainant ASI Sajjad Hussain at Ex.5, he produced  FIR No.61/2013 at Ex.5/A, roznamcha entries at Ex.5/B and 5/C and PW-3 ASI Moharram Ali at Ex.6, who produced Forensic Laboratory Report at Ex.6/A. Thereafter, learned ADPP who was conducting the prosecution case closed the prosecution side his statement dated 13.03.2014 at Ex.7.

6.         Appellant in his statement recorded under section 342, Cr.P.C, has denied the case of prosecution by pleading his innocence. He has stated that PWs are Police Officials and interested. The appellant did not step into the witness box and declined to give statement on oath in disproof of prosecution allegations.

7.         On the assessment of the evidence available on record and after hearing the learned counsel for the parties, learned trial Judge found the appellant guilty for the aforesaid offence and convicted him accordingly.

8.         Mr. Ghulam Murtaza Jokhio, learned counsel for the appellant has with great energy argued that prosecution witnesses have been wrongly believed by the trial Court and argued that there are material contradictions in the evidence of the complainant and mashir. Learned counsel has referred to the discrepancy and argued that complainant has deposed that pistol was not sealed at spot.  He referred to the evidence of mashir and argued that he has deposed that pistol was sealed at police station. He has argued that accused has been acquitted in main case. According to the counsel for the appellant police party had never left for patrolling and recovery has been foisted upon the appellant due to enmity.  It is also argued that no sketch of the pistol was prepared by the I.O. He has lastly argued that prosecution case is highly doubtful. In support of his contentions he placed reliance upon the cases of The State v. Bashir and others (PLD 1997 SC 408) and Abdul Sattar and others v. The State (2002 P.Cr.LJ 51 [Karachi]).

9.         Mr. Khadim Hussain Khooharo, learned DPG argued that police had no enmity with the appellant to foist upon him T.T. Pistol. He has submitted that evidence of the police officials cannot be discarded simply because they belong to police force. He has argued that recovery was made during night hours and private persons were not available. He has supported the impugned judgment.

10.       It is settled law that evidence of police  officials cannot be discarded simply because they belong to the police force, the Court should not start with any presumption against them. However, in a case of this nature where fate of accused person hinges upon the testimony of the police officials alone it is necessary to find out if there was any possibility of securing independent persons at the time of recovery of unlicensed weapon. The conviction or acquittal of an accused person depends upon the credibility  of the witnesses as assessed by the Court but where it was possible for the police officer to call the independent persons to act as mashir but it was not alone, the Court has to be very careful in weighing such evidence. Judicial approach has to be cautious in dealing with such situation.

11.       I am cautious of the fact that provisions of Section 103, Cr.P.C are not attracted to the case of personal search. However, in the circumstances of the present case where accused has claimed his false implication by the police, it was essential for the police to examine some independent person when the accused was arrested adjacent to the Municipal Stadium gate. It has also come on record that appellant has been acquitted by learned IV-Additional Sessions Judge, Larkana in the main case bearing Crime No. 59/2013 under Sections 392, 34, PPC of PS Civil Line, Larkana by judgment dated 07.12.2013 by disbelieving prosecution case. State has not challenged acquittal of accused in the main case. In the F.I.R it is clearly mentioned that after recovery of 30 bore pistol it was not sealed. PW/Mashir Khalid has replied that pistol was sealed at spot. No sympathy can be attached to such recovery and tempering of pistol cannot be ruled out in the circumstances of the case.  Appellant was arrested on 10.6.2013 and pistol was sent to Ballistic Expert on 29.6.2013, delay in dispatching pistol to the expert has also caused dent in the prosecution case, as no explanation whatsoever has been given by the prosecution. In such circumstances, it would be unsafe to rely upon the evidence of police officials without independent corroboration which is lacking in this case.

12.       In the light of above discussion, it is obvious that the prosecution has miserably failed to prove its case against the present accused beyond the shadow of reasonable doubt. Rightly reliance has been placed on the above cited authorities. I am unable to uphold the conviction and sentence of the appellant recorded by the trial Court and by giving him the benefit of reasonable doubt, set aside his conviction and sentence and direct that he be set at liberty if not wanted in any other custody case.

13.       These are the reasons of my short order announced in Court on 02.3.2015.

                                                                                                            Judge 

Abid H. Qazi /**