Criminal Appeal No. 351 of 2016
Criminal Appeal No. 360 of 2016
Criminal Appeal No. 362 of 2016
Date of hearing : 21st April, 2017.
For Appellant : Mr. Qamar Ahmed Shaikh, Advocate.
{In Crl.Appeal 351/2016}
For Appellant : Syed Nadeemul Haq, Advocate.
{In Crl.Appeal 360/2016}
For Appellant : Mr.Shahab Sarki, Advocate.
{In Crl.Appeal 362/2016}
For the State : Mr. Zahoor Shah, A.P.G.Sindh.
{In All Appeals}
J U D G M E N T
SYED MUHAMMAD FAROOQ SHAH, J.:- By this common judgment, the captioned appeals arising from same Mashirnama of recovery, arrest and report of FSL Examiner are taken together.
2. Succinct story of prosecution as narrated in the charge framed by the trial court is that on 14.02.2015 at about 1445 hours at Tariq Road near Crossing Sir Syed Road, PECHS, Karachi the accused were found in possession of unlicensed 0.9 mm pistol without number, loaded magazine alongwith live bullets. The initial document prepared by the Investigating Officer is memo of arrest showing the recovery of unlicensed weapon, body search and recovery (Exh: 3/A); a perusal of which reflects that the accused being police officials were found drunk under intoxication of alcohol and from their possession five bottles of liquor, one bottle recovered from each accused and unlicensed pistol from appellants without number loaded with live bullets were recovered. Subsequently, on completion of usual investigation the five accused were tried and acquitted for an offence punishable under section 3/4 PEHO vide judgment pronounced by the trial court on 10.03.2010; copy of which available at page 61, in Cr. Appeal No. 362/2016. However, almost on same set of evidence the three appellants in captioned appeals were convicted and sentenced for the offence punishable under section 23-1(A) Sindh Arms Act, 2013 RI for seven years and fine of Rs. 20,000/- in default whereof to undergo RI for six months more, with benefit of section 382-B Cr.P.C.
3. Arguments heard. Record perused.
4. I have scanned the evidence adduced by the prosecution with the able assistance of learned counsel for appellants and learned Assistant Prosecutor General, Sindh.
5. The complainant in his deposition stated that from search of body of appellant he recovered 0.9 mm pistol loaded with live bullets, though the memo of arrest and recovery (Exh: 3/A) reveals that said weapon was recovered from “Naifa” of shalwar of the accused Zahid Malik and .30 bore unlicensed pistols were recovered from the right side of paints of appellants Saifullah and Muhammad Hanif, without mentioning that as to whether from side pockets of paints, from vest or from front side packets etc. the alleged weapons were recovered. Memo of recovery reveals that alleged recovery was affected on 14.02.2015 and weapons were dispatched to the Examiner of FSL on 19.02.2015, without explaining the reasons of five days delay in sending the secured illicit weapons.
6. In their statements recorded under section 342 Cr.P.C. the appellants have vehemently denied the allegation of prosecution and claimed their innocence. The appellant Muhammad Hanif by producing the license of weapon stated that he possessed the licensed weapon which was recovered from his possession. Learned Assistant Prosecutor General, Sindh at this juncture submitted that license which he has produced before the trial court is of revolver and not of a pistol which was allegedly recovered from the appellant. Learned counsel argued that actually revolver was recovered from the appellant namely Muhammad Hanif and it was replaced into unlicensed pistol by the complainant, just to implicate the appellant in a false and fabricated case.
7. It is an admitted position that all the appellants have been acquitted in case Crime No. 124/2015 under section 3/4 PEHO, registered with Police Station Ferozabad, Karachi for possessing the contraband narcotics whereas on the same set of evidence adduced by the prosecution in the instant cases they were convicted by the trial court. Learned counsel representing the appellants submit that prosecution has miserably failed to prove the case by producing the confidence inspiring evidence and the prosecution story is full of doubt with material contradictions as above. Learned counsel for the appellants argued that astonishingly, how a weapon of .30 bore can be kept in folded place of shalwar stitched for passing rope (KAMRBAND) of shalwar as the FIR and memo of recovery reveal that said weapon was hidden in the “NAIFA” which is usually used to pass on the rope (KAMRBAND) to fasten/tighten shalwar, wherein the weapon like pistol cannot be kept, therefore, the police officials did not support the memo of recovery/FIR and to improve their case stated that said weapon was recovered from the appellants/accused.
8. The point which requires determination is that as to whether a .30 bore pistol loaded with six live bullets was recovered from the “NAIFA” of shalwar of appellant/accused Zahid Malik and from the paints of remaining two accused without mentioning specific hidden point/place of paint and as to whether the prosecution evidence consisting on three police officials is inspiring confidence to award conviction and sentence to the appellant/accused, though on the same set of evidence the appellants have already been acquitted in another case of recovery of narcotic under the same Mashirnama.
9. A perusal of impugned judgment reveals that learned trial court acted in oblivion of principles of appreciation of evidence in criminal trial to evaluate it and discover the probabilities with regard to the conviction of the accused. Suffice is to say that from material on record, the version of prosecution without corroboration adversely affects the credibility of prosecution witnesses testimony; more particularly they have nowhere stated in deposition that weapon was recovered from NAIFA of shalwar which fact transpires in the FIR and Mashirnama. All these facts have not been considered by the trial court resulting the illegality and infirmity in the impugned judgment. It needs not to be reiterated that keeping in view the judicial wisdom, experience and while balancing the judicial conscious justice should be dispensed with according to the law and not to the whims and caprice or subjective standard in the overall context. There are so many circumstances, discussed above creating serious doubts in the prosecution case which go to the roots of the prosecution case and according to golden principle of benefit of doubt one substantial doubt would be enough for acquittal of the accused. The rule of benefit of doubt is essentially a rule of prudence, which cannot be ignored while dispensing justice in accordance with law. Conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case, must be resolved in favour of the accused. The said rule is based on the maxim “ it is better that ten guilty persons be acquitted rather than one innocent person be convicted” which occupied a pivotal place in the Islamic Law and is enforced strictly in view of the saying of the Holy Prophet (PBUH) that the “mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent”.
10. For the foregoing reasons I reached at the irresistible conclusion that evidence adduced by the prosecution falls short of disclosing the charged offence against the appellants/accused. In the circumstances, the conviction and sentence awarded to the appellants/accused is set aside. The appeals are allowed and appellants/accused are acquitted from the charge of this case. They are confined in prison being convicted prisoners. The superintendent Central Prison, Karachi is directed to release them if they are not required in any other case.
*Aamir/PS* J U D G E