IN THE HIGH COURT OF
SINDH, KARACHI
Criminal Appeal No.229 of 2014
Appellant: Faiz Ahmed son of Allah
Ditta through Ms. Erum Khan, Advocate
Respondent: The State through Mr. Ali
Haider Saleem, Assistant Prosecutor General Sindh
Date of hearing: 08.09.2015
Date of announcement: 15.09.2015
J U D G M E N T
Naimatullah Phulpoto, J. :-- Appellant Faiz Ahmed son of Allah Ditta was
tried by Ms. Sarwat Sultana, VIII Assistant Sessions Judge, Karachi
East, for offence under section 23(1)(a) of the Sindh Arms Act, 2013. The
appellant was found guilty, vide judgment dated 25.07.2014 he was convicted under
section 265-H(ii) Cr.PC for offence under section
23(1)(a) of the Sindh Arms Act, 2013 and sentenced to 7 years R.I. and to pay
fine of Rs.40,000/-. In case of default in payment of fine, he was ordered to
suffer S.I. for two months. Appellant was extended benefit of section 382-B
Cr.PC. By this appeal, the appellant has challenged his conviction and sentence
before this Court.
2. Brief facts of the prosecution case as
disclosed in the F.I.R. are that accused was arrested in main case, F.I.R.
No.687/2013 for offences under sections 353, 324, 34 PPC and upon personal
search of appellant/accused, one unlicensed pistol 30 bore without number
loaded with two live rounds in magazine were recovered. The appellant/accused
failed to produce license for weapon carried by him, he was arrested in
presence of mashirs. Due to non-availability of private persons, mashirnama of
arrest and recovery was prepared in presence of police officials/mashirs. Case
property was sealed at the spot. Thereafter, accused and case property were
brought to the police station where F.I.R. was registered against the accused
vide Crime No.693 of 2013 under section 23(1)(a) of
the Sindh Arms Act, 2013.
3. After registration of F.I.R., investigating
officer recorded 161 Cr.PC statements of PWs. Weapon was sent to expert,
positive report was received. On conclusion of usual investigation, challan was
submitted against the accused under the above referred section.
4. Charge was framed against the appellant at
Ex-2 and he was asked whether he pleads guilty or has any defence to make, to
which he pleaded not guilty and claimed to be tried. At the trial, prosecution
examined following witnesses:
(i)
PW-1 SIP
Muhammad Iqbal at Ex.3.
(ii)
PW-2
ASI Nadeem Asif at Ex-4.
(iii)
PW-3
Inspector Malik Zameer Hussain at Ex-5
Thereafter,
prosecution side was closed on 12.06.2014.
5. In his statement recorded under section 342
Cr.PC at Ex-7 appellant has disputed the case of the prosecution by alleging
his false implication in this case due to his failure to pay illegal
gratification to police. The appellant did not step into the witness box and
did not examine any witness in defence.
6. On assessment of evidence available on record,
learned Assistant Sessions Judge found the appellant guilty and convicted him
as stated above.
7. Ms. Erum Khan, learned advocate for the
appellant with great energy put before me the reasons for disbelieving the evidence
of the prosecution witnesses, who belong to the police, and has endeavoured to
show that their evidence as to patrolling and recovery of T.T. pistol from
possession of appellant is untrustworthy. It is argued allegedly recovered
pistol was without number, it is easy to foist such pistol but difficult to
prove. It is also argued that place of recovery is situated at railway colony,
no efforts were made by ASI Muhammad Iqbal to call the independent and
respectable persons of the locality to make them mashirs in this case though it
was the case of spy information. She also pointed out material contradictions
in the evidence of the complainant and mashir of recovery, which have not been
taken in consideration by the learned Judge while passing the impugned
judgment. Reliance is placed on the case of MUHAMMAD NAWAZ and another versus
THE STATE (PLD 2005 SC 40).
8. Mr. Ali Haider Saleem,
learned Assistant Prosecutor General Sindh argued that prosecution has proved
its case against the appellant. Unlicensed pistol has been recovered from the possession
appellant in presence of mashirs. He further argued that evidence of police
officials is as good as that of any other citizen. He argued that
contradictions were not material in nature. He has supported the impugned
judgment.
I have carefully heard the learned
counsel for the parties and examined/scrutinized the prosecution evidence
minutely.
I am conscious of the fact that
provisions of section 103 Cr.PC are not attracted to the case of personal
search of a person. However, where alleged recovery of pistol
was made from the appellant at the place near railway lane, Central Government
Railway Housing Society, Karachi. The omission to secure independent
mashirs from the locality is significant and cannot be brushed aside lightly by
this Court. There are also material contradictions in the prosecution case. PW-2
ASI Nadim Asif in his cross-examination replied that there was encounter for 1
½ minutes. On the said point, PW-1 Muhammad Iqbal in his cross-examination has
replied that encounter continued for 20 to 25 minutes. There is also another
material contradiction, PW-2 Nadim Asif has replied in the cross-examination
that no private person was present around the place of recovery whereas, on the
same point, PW-1 Muhammad Iqbal has replied that private persons were present
but they refused to act as mashir in the case. It is noticed that pistol was
without number/made in. Therefore, there is force in the contention of the
defence counsel that such kind of firearm can easily be foisted. As it was
evening time, prosecution should have examined some independent persons of the
locality but it has not been done. In this case, appellant has claimed false
implication for money. As such, prosecution should have examined any person of
that area to prove its case. No doubt, 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 recovery of arms
where the fate of an accused person hinges upon the testimony of police
officials alone, it is essential to find out if there was any possibility of
securing independent persons at the time of recovery. 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 officials to
call independent witnesses to act as mashir but he deliberately avoided, the
Court has to be very careful in weighing such evidence. Judicial approach has
to be cautious in dealing with such type of evidence. Division Bench of this
Court in the case of SAIFULLAH versus The STATE (1992 MLD 984) has observed as
under:
“8. The evidence of police officials
cannot be discarded simply because they belong to police force. In Qasim and others v. The State, reported in PLD 1967 Kar.
233, it was held:‑
"A police officer is as good
a witness as any other person. The standard of judging his evidence is the same
on which the evidence of any other witness is judged."
However, in a case of this nature
where the fate of an accused person hinges upon the testimony of police
officials alone, it is necessary to find out if there was any possibility of
securing independent persons at that time. Judicial approach has to be cautious
in dealing with such evidence.
9.
The evidence which has come on record shows that the place where the appellant
was allegedly captured at 9 p.m. is near the Cinema House, where admittedly number of persons were present. The record also shows that
Faqir Muhammad who was picked up from that spot was made as Mashir in this
case. He was, however, not examined by the prosecution, why, nobody knows. At
least the learned counsel for the State has not been able to give slightest
reason for this failure of the prosecution. The prosecution, therefore, must
face the adverse inference arising from this omission.”
Prosecution has failed to prove its case against the
accused beyond any shadow of doubt Accused in his statement under section 342
Cr.PC has raised plea that recovery has been foisted upon him for the reasons
that he has failed to pay illegal gratification demanded by the police. The
material contradictions in the prosecution case have been dealt with by trial Court
in a very casual manner. The proper mode of appraisal of evidence in this case
for the trial Court was to consider the reliability of each witness separately
then to examine the case as a whole and also to examine the credibility of the
prosecution witnesses in juxtaposition with each other. Mere fact that prosecution
witnesses had no apparent reason to depose falsely against the accused was not
sufficient to hold them trustworthy. Mere fact that prosecution witnesses had
no enmity with the appellant to implicate him falsely does not render their
evidence unassailable. Truth or falsity of the statements of the prosecution
witnesses largely depends upon the circumstances to accept the prosecution
evidence without considering the circumstances would be totally inconsistent
with the safe administration of justice. It is a known principle of
appreciation of evidence that benefit of all favourable circumstances in the
prosecution evidence must go to the accused regardless of whether he has taken
any such plea or not. Reliance is rightly placed on the case of MUHAMMAD NAWAZ
and another versus THE STATE and others (PLD 2005 Supreme Court 40). In the present case, there are several circumstances,
which create serious doubt in the prosecution case. No doubt, the Sindh Arms
Act, 2013 is enacted to curb the proliferation of arms and ammunitions and
punishment for possession of any fire arm is extended to 14 years and with
fine. The rule for safe administration of criminal justice is; the harsher the
sentence, stricter the standard of proof. Therefore, for the purposes of safe
administration of criminal justice, some minimum standards of safety are to be
laid down so as to strike a balance between the prosecution and the defence and
to obviate chances of miscarriage of justice on account of exaggeration by the
investigating agency. Such minimum standards of safety are even otherwise
necessary for safeguarding the Fundamental Rights of the citizens regarding
life and liberty, which cannot be left at the mercy of police officers.
16. On overall assessment of entire evidence in
the case and on considering of the surrounding circumstances and while relying upon
above cited case law, I have come to conclusion that prosecution case against
the appellant is doubtful in nature. Accordingly, I extend benefit of doubt to accused
and acquit him from the charge. The conviction and sentence recorded against
the appellant are set aside. The appellant who is in custody be released
forthwith if not required in any other case. Consequently, the appeal is allowed.
J U D G E
Gulsher/PA