Criminal Appeal No. 304 of 2016
JEHANZEB son of MUHAMMAD ASLAM . . . . . . . . . . . Appellant
V E R S U S
THE S T A T E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Respondent
Date of hearing : 5th April, 2017.
For the Appellant : M/s Barrister Fayyaz Ahmed &
Manzoor Ahmed Somar, Advocates.
For the State : Mr. Abrar Ali Khichi, A.P.G.Sindh.
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Syed Muhammad Farooq Shah, J.:- Jehanzeb son of Muhammad Asghar, the appellant/accused was tried in case FIR No. 118/2014 under section 23-1(A) of Sindh Arms Act, 2013 lodged at Police Station Quaidabad, Karachi, whereby the appellant/accused was convicted and sentenced to suffer RI for seven years. The appellant/ accused has assailed the impugned judgment through the present appeal with prayer to set aside it, acquit him on consideration of facts and grounds narrated in the captioned appeal.
2. Case of the prosecution, in nutshell, is that SIP Sadaqat Ali lodged aforesaid FIR on 25.3.2014 stating therein that during patrolling along with his subordinates, he received spy information that a person duly armed with weapon is available at D-7 bus stop. On such information, he proceeded towards the pointed place, they found the accused and due to non-availability of private Mashirs, he conducted personal search of accused in presence of PCs and from right side NAIFA of shalwar a .30 bore Pistol No.31670048636, loaded with six live bullets was recovered. Accused did not produce its license hence he was arrested under section 23-1(A) Sindh Arms Act, 2013. The weapon was sealed at the place of recovery and arrest and thereafter the FIR was lodged at Police Station. On conclusion of usual investigation the case was charge sheeted under section 173 Cr.P.C.
3. The appellant/accused did not plead guilty to the charge framed by the trial court against him for possessing the unlicensed weapon. Prosecution, to substantiate its version, examined three police officials named in the calendar of charge sheet.
4. PW-1, Sub-Inspector Syed Sadaqat Ali supported the contents of FIR lodged by him and produced the Mashirnama and FIR as well. In reply to question during cross, he denied that weapon has been foisted upon the appellant/accused, however, admitted in cross-examination that BSF factory is at some distance from the place of arrest and recovery and that no number of manufactures on bullet is mentioned in the Mashirnama. He has also admitted that he did not mention in the Mashirnama that pistol is Pak made China. He further admitted that at the time of arrest he has not enquired from the appellant/accused about his service.
5. PW-2, PC Muhammad Arshad stated in his examination-in-chief that on spy information, they proceeded at Mehran Highway adjoining D-7 bus stop where the informer pointed out the said person who was apprehended. In his cross-examination, the said witness stated that he did not remember the number of departure entry and that they received spy information at MN Cut, Mehran Highway about five minutes before the arrest of appellant/accused. The appellant/accused did not try to escape. He has further admitted that no any other article was secured from personal search of accused except the case property produced before the court. Cross-examination of complainant SIP Sadaqat Ali reveals that six live bullets, .30 bore pistol, magazine and one test empty were recovered but fact of test empty does not transpire in the Mashirnama of recovery and arrest. The Mashirnama of place of occurrence reveals that place of incident is situated at Mehran Highway where traffic was found plying, however, the memo of recovery shows that the place of occurrence was D-7 last stop at Mehran highway.
6. ASI Akhtar Hussain stated that apprehended accused was also involved in another Crime No. 203/2012 registered at Police Station Sharafi Goth under section 392/34 PPC but he did not state about the status or disposal of said case in favour of prosecution or in favour of the accused. The report of Forensic Expert Exh: 5/E, produced by the Investigating officer, does not show the recovery of test empty bullet from the accused as stated by the complainant.
7. In his statement under section 342 Cr.P.C., the appellant/accused has vehemently denied the allegation of recovery of unlicensed .30 bore pistol loaded with magazine containing six live bullets. He has further stated that FSL report is managed one and that he was arrested on 20.3.2014 by the official of Pakistan Rangers from Rehri Goth where he attended the marriage ceremony of his friend Naeem at night time and officials of Pakistan Rangers kept him about six days and thereafter his custody was handed over to the police and police foisted the above mentioned weapon upon him, he claimed his innocence and prayed for justice. To support his contentions, the appellant/accused examined DW Muhammad Naeem (Exh:9) who stated that on 19.03.2014 he invited the appellant/accused to attend his marriage ceremony and when appellant/accused was returning to his house, he was arrested in the way by the officials of Pakistan Rangers. He accompanied the appellant/accused when Pakistan Rangers officials caused lathi blows to him and to his friend Jehanzeb, the appellant/accused, and took the appellant/ accused with them and let off him. He then informed the family of accused and after 25/26 days he came to know that Jehanzeb has been implicated in the case of possessing the unlicensed pistol. He has categorically stated that accused is innocent. In cross-examination conducted by the prosecution, he has denied the suggestion with regard to deposing falsely due to his friendship with the accused/appellant/accused.
8. Arguments heard. Record perused.
9. 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 and as to whether prosecution evidence consisting on three police officials is inspiring confidence to award conviction and sentence to the appellant/accused.
10. Highlighted portion of paragraph 10 of the impugned judgment revels that on the basis of reply of a cross question put to PW PC Muhammad Arshad that ‘no any other article was secured from personal search of accused except the property produced before the court’ the trial court opined that evidence brought by the prosecution is inspiring confidence and trustworthy and accused failed to establish his defence plea.
11. Astonishingly, how a weapon of .30 bore can be kept in place of shalwar stitched for passing rope (nara) of shalwar as the FIR and memo of recovery reveal that said weapon was hidden at the NAIFA which is usualy used to pass on the rope (nara) to fasten/tighten shalwar where 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 right side of fold of shalwar. Even otherwise conviction and sentence recorded by the trial court through the impugned judgment cannot be sustained due to established principle of law that admission of commission of offence by the accused is not sufficient to award conviction to him. If need arises, reliance may be placed on the case of AZHAR IQBAL VS. THE STATE (2013 SCMR 383) and WAQAR AHMED V/S SHOUKAT ALI AND OTHERS (2000 SCMR 1139). More so, the complainant in his cross-examination stated about the recovery of “one test empty” but such fact does not found mention in the Mashirnama of recovery or in the FIR nor the said empty was sent to Forensic Expert to ascertain whether it was used from the recovered weapon or otherwise.
12. Under section 34 of Sindh Arms Act, 2013 the evidence of police officials is as good as any other person but facts of instant case transpires that even on receipt of advance information about the presence of accused police did not call or associate any respectable person to act or witness the alleged incident. Plausible and confidence inspiring evidence adduced by the accused cannot be thrown away and if the said evidence is put in juxtaposition then it can be presumed that weapon has been foisted upon the appellant/accused. It was 1800 hours (day time) when alleged recovery was affected by the police officials from bus stop where usually the peoples are found available but they did not bother to associate any independent person to witness the recovery.
13. The conviction and sentence awarded to the appellant/accused on the basis of observation with regard to admission of the accused, in reply to the question put by the counsel for accused cannot be treated as admission and even otherwise in the light of the ruling of Hon’ble Supreme Court of Pakistan (supra) the said admission is having no value to award conviction. The observation made by the trial court regarding admission of accused appears to be the result of misreading and non-reading of evidence available on the record.
14. A perusal of impugned judgment further 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.
15. 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 appellant/accused. In the circumstances, the conviction and sentence awarded to the appellant/accused is set aside. Consequently, the appellant/accused is acquitted from the charge of this case. The Superintendent Central Prison, Karachi is directed to release the appellant forthwith if he is not required in any other case.
The appeal is allowed in the above terms.
*Aamir/PS* J U D G E