IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Crl. Appeal No.S-175 of 2016
Nizamuddin @ Nizoo
Versus
The State
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Date of hearing |
26-05-2017
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Date of Judgment
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26-05-2017 |
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The appellant |
Nizamuddin @ Nizoo s/o Dholan, by caste Jaffery. Through Mr. Manzoor Khan Dharejo, Advocate.
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Respondent |
The State Through Mr. Saleem Akhtar, Additional Prosecutor General for the State |
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RASHEED AHMED SOOMRO, J. The appellant, namely Nizamuddin @ Nizoo son of Dholan, was tried by the learned II-Additional Sessions Judge, Khairpur in a Sessions Case No.941/2015, for offences under Sections 23(i)(a) of Sindh Arms Act, 2013, registered at the Police Station B-Section Khairpur, vide Crime No.221 of 2015. Vide impugned judgment dated 28.09.2016, the appellant was convicted and sentenced to undergo rigorous imprisonment for four years and to pay fine of Rs.10,000/- and in case of default of payment of fine, to suffer S.I for one month more. Benefit of Section 382-B Cr.P.C was also extended to the appellant.
2. Brief facts of the prosecution case, as narrated in the F.I.R. are that on 08.09.2015, the complainant A.S.I. Raheem Bux Kalhoro lodged the F.I.R. alleging therein that on the day of report he along with his subordinate staff left the Police Station vide entry No.19 at 0700 hours in police mobile for patrolling in the area, after patrolling from different places they reached at Shah Hussain Chowk and then went to link road Pir Goth at Sim Nali near village Auteri they saw one person crossed the road and police party under suspicion condition arrested him. On inquiry he disclosed his name as Nizamuddin @ Nizoo son of Dholoo by caste Jafri. Due to non-availability of private persons he made P.C Abdul Hafeez and PC Fayyaz as mashirs and took personal search of the accused and found one T.T pistol along with magazine containing four live bullets from the right side fold of the shalwar. The accused did not produce valid license of pistol. The complainant sealed the pistol and bullets at spot and prepared such memo of arrest and recovery in presence of above mashirs and brought the accused and case property at Police Station where he lodged F.I.R. against the accused on behalf of the State.
3. After registration of the FIR, SIP Hussain Bux conducted investigation of the present case and after completion of investigation submitted challan of the case.
4. The trial Court framed the charge against appellant at Ex.02, to which the appellant pleaded not guilty and claimed to be tried.
5. In order to prove the charge against the appellant, the prosecution examined P.W-1 complainant A.S.I. Raheem Bux Kalhoro at Ex.4, who produced entry at Ex.4/A, memo of arrest and recovery at Ex.4/B, arrival entry at Ex.4/C and F.I.R. at Ex.4/D, P.W-2 SIO Hussain Bux at Ex.5, who produced departure/arrival entry at Ex.5/A, memo of wardat at Ex.5/B, letter for permission to S.S.P Khairpur at Ex.5/C and report of ballistic expert at Ex.5/D. P.W mashir P.C Abdul Hafeez was examined at Ex.6 and thereafter ADPP for the State closed the side of prosecution at Ex.7.
6. The statement of appellant/accused was recorded under Section 342 Cr.P.C at Ex.08, in which he denied the allegations of the prosecution leveled against him. He claimed his innocence and false implication in this case. Neither he examined himself on oath nor led any sort of evidence in his defense.
7. After hearing the parties, the trial Court passed the impugned judgment dated 28.09.2016, in which the appellant/accused was convicted, as above, who has filed the instant criminal appeal.
8. Mr. Manzoor Khan Dharejo, learned counsel for the appellant has argued that the judgment of 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 there are material contradictions in the evidence of complainant and mashir; that question of Ballistic expert report was not put to the accused during his statement u/s 342 Cr.P.C as such this piece of evidence cannot be used against him. He next argued that in fact the accused during cross examination of the witnesses has taken plea that the accused had come to village Auteri for grazing his cattle where the complainant demanded goats from the accused illegally and on refusal, he was implicated in this case falsely. Lastly he has prayed for setting-aside the impugned judgment and acquittal of the appellant.
9. Mr. Saleem Akhtar, Additional Prosecutor General has supported the impugned judgment passed by the trial Court. He has argued that all the witnesses have given consistent account and their statements are supported by the report of the Ballistic Expert; there are no material contradictions in the evidence of the complainant and P.Ws.
10. I have considered above contentions of the learned counsel for the appellant and learned Additional Prosecutor General and have gone through the entire evidence very carefully.
11. It is well settled law that when there are only police witnesses in a recovery case then their evidence should be scrutinized deeply. Perusal of record shows that though the complainant and mashir are consistent on the points of arrest and recovery of pistol and bullets from the possession of the accused and sealing of pistol at the spot; but the I.O has contradicted their evidence by deposing that property was not received by him in sealed position. The report of the Ballistic Expert further confirms the evidence of the I.O, wherein it is mentioned that “Sealed parcel was not intact received from the SSP Khairpur”. Moreover, the evidence of the I.O is silent about sending of the pistol to the Ballistic Expert, he only deposed in his evidence that “on the same date I wrote letter to SSP Khairpur for sending the weapon”. In such circumstances it cannot be said with conformity that whether same pistol which was allegedly recovered from the appellant/accused was sent to the Ballistic Expert; in such a situation the report of the Ballistic Expert losses its sanctity.
12. Moreover, the question in respect of the Ballistic Expert report is not put to the appellant/accused in his statement u/s 342 Cr.P.C, therefore, such piece of evidence cannot be used against him. It is held by the Honourable Supreme Court of Pakistan in case of Muhammad Shah vs. The State (2010 SCMR 1009) as under:-
Criminal Procedure Code (V of 1898)—
---S.342---Penal Code (XLV of 1860), 302(b)-Qatl-e-amd---Appreciation of evidence---If any incriminating piece of evidence is not put to accused in his statement under S. 342 Cr.P.C for his explanation, then the same cannot be used against him for his conviction.
13. In the light of above discussion it is absolutely clear that trial court has not correctly considered evidence produced by the prosecution before trial court, therefore, the impugned judgment is result of non-reading and mis-reading of the materiel brought on record.
14. It is settled principle of law that for giving benefit of doubt to accused it is not necessary that there should be many circumstances creating doubt, if a simple circumstance creates reasonable doubt about the guilt of accused he will be entitled to such benefit not as a matter of grace and concession but as a matter of right. In this view I find support from case of Tarique Pervez vs. The State (1995 SCMR 1345).
15. For the foregoing reasons and discussion, I have come to the conclusion that the case of prosecution against appellant is also not free from doubt, therefore, instant criminal appeal was allowed, vide short order dated 26.05.2017 and the impugned judgment dated 28.09.2016 was set-aside. Appellant Nizamuddin @ Nizoo Jaffery was acquitted from the charge. Appellant was present on bail, his bail bond stands cancelled and surety discharged.
16. These are the reasons of my short order dated 26.05.2017.
JUDGE