HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No.213 of 2017
Appellant : Ali Raza @ Raza Ali son of Muhammad Ismail
through Mr. Raham Ali Rind, Advocate along with Appellant (on bail).
Respondent : The State through Ms. Amna Ansari,
Additional Prosecutor General, Sindh.
Date of hearing : 16.04.2019
Date of Judgment : 16.04.2019
J U D G M E N T
Abdul Maalik Gaddi, J.– Appellant Ali Raza @ Raza Ali was tried by the Court of learned Vth Additional Sessions Judge, Karachi (Central), in Sessions Case No.547 of 2015 (re: The State v. Ali Raza alias Raza Ali), arising out of Crime No.133 of 2015 registered at police station New Karachi, Karachi, under Section 23(1)(a) of Sindh Arms Act, 2013. By judgment dated 27.04.2017, the appellant was convicted under Section 265-H(ii), Cr.P.C. for offence under Section 24 of Sindh Arms Act, 2013 and sentenced him to undergo R.I. for seven (7) years with fine of Rs.50,000/-, in default of payment of fine, it was further ordered that appellant shall suffer undergo R.I. for six (6) months more. However, the benefit of Section 382-B Cr.P.C. was also extended to the appellant.
2. The brief facts of the prosecution case leading to the filing of this appeal are that SIP Ghulam Muhammad Lund arrested the accused Ali Raza alias Raza Ali in FIR No.132 of 2015, registered at police New Karachi, Karachi under Section 353/324/34 PPC from whose possession one unlicensed TT Pistol of 30 bore No.A-2274, load magazine containing one bullet in chamber load was recovered. As accused could not produce license of the weapon, he was arrested under memo of arrest and recovery, and hence, this FIR.
3. The charge was framed on 24.07.2015 at Ex.2 against the accused by the learned trial Court, to which appellant pleaded not guilty and claimed to be tried vide his plea at Ex.3.
4. At trial, in order to establish accusation against appellant/accused, prosecution had examined PW-1 SIP Ghulam Muhammad Lund at Ex.4, who produced roznamcha entry No.6, memo of arrest and recovery, roznamcha entry No.12, FIR No.133 of 2015 and memo of site inspection at Ex.5 to Ex.9 respectively; PW-2 PC Amir Hussain at Ex.10; PW-3 ASI Mumtaz Ali at Ex.11, who produced entries No.31 and 43, letter addressed to DCO, letter addressed to incharge FSL and examination report of FSL at Ex.12 to Ex.16; PW PC Muhammad Juman and PC Samad Ali were given up by the prosecution vide statement at Ex.17. These witnesses were cross examined by the Counsel for appellant. Thereafter, leaned ADPP closed the prosecution side vide Statement at Ex.18.
5. Statement of appellant was recorded under Section 342, Cr.P.C.at Ex.19, in which he has denied the allegations as leveled by the prosecution by stating that he is innocent and nothing was recovered from him. He further stated that he was arrested from his house and all the prosecution witnesses are police officials and they have falsely deposed against him at the instance of higher police officials. However, accused neither examined himself on Oath nor led any evidence in his defence.
6. Mr. Raham Ali Rind, the learned counsel for appellant has argued that appellant is innocent and has been falsely implicated by the police; that the alleged recovery of pistol and bullets have been foisted upon him and despite availability of public, no independent person has been cited as witness while the alleged place of incident i.e. service road near Ideal Shadi Lawn, Sector 11-J, New Karachi, Karachi, is a thickly populated area. Per learned Counsel, the evidence so brought on record by the prosecution witnesses in this case is contradictory in nature to each other on material particulars of the case. During the course of arguments, learned Counsel for appellant has taken to me to the evidence of prosecution and highlighted the number of contradictions in between the statements of prosecution witnesses, therefore, according to him, on the basis of contradictory evidence, conviction could not be maintained. He further contended that appellant is maintaining his entire family and due to his confinement in jail, they are suffering from their livelihood. Learned Counsel for appellant also contended that instant case is offshoot of Crime No.132 of 2015 registered at police station New Karachi, under Section 353/324/34, PPC, in which mashirnama of arrest and recovery was same and learned trial Court has acquitted the present appellant by disbelieving the mashirnama of arrest and recovery; hence, he prayed for acquittal of appellant by allowing the appeal.
7. Conversely, Ms. Amna Ansari, learned Additional Prosecutor General, Sindh for the State has supported the impugned judgment passed by the trial Court and contended that the appellant was arrested on spot and one unlicensed TT Pistol of 30 bore No.A-2274, load magazine containing one bullet in chamber load was recovered from his possession, which was in working condition. She further contended that provisions of Section 103, Cr.P.C. are not applicable during search made under Sindh Arms Act, 2013, therefore, appellant could not take the benefit of non-association of private mashirs and during the course of recovery. Per learned Additional Prosecutor General, Sindh, the offence committed by the appellant is serious and heinous in nature, thus, appellant is not entitled for any relief.
8. I have given my anxious thoughts to the contentions raised at the bar and have also gone through the case papers so made available before me.
9. After careful consideration and meticulous examination of the available record, suffice to say that mere heinous nature of offence is not sufficient to convict the accused because the accused continues with presumption of innocence until found otherwise at the end of the trial. It is the settled principle of law that burden is always upon the prosecution to prove the case beyond shadow of doubt. Keeping in view of this basic touchstone of criminal administration of justice, I have examined the ocular evidence as well as circumstantial evidence, alongwith impugned judgment.
10. I have come to the conclusion that the prosecution has failed to prove its’ case against the appellant for the reasons that all the pieces of evidence produced by the prosecution in this case are weak in nature. As per police papers, it reveals that on relevant date, police party headed by complainant SIP Ghulam Muhammad Lund were on patrolling duty and during patrolling, when they reached at service road near Ideal Shadi Lawn, Sector 11-J, New Karachi, Karachi, present appellant/accused was found in suspected condition, as such, he was arrested and police recovered one unlicensed TT Pistol of 30 bore No.A-2274, load magazine containing one bullet in chamber load from his possession, in presence of mashirs namely PC Muhammad Amir and PC Abdul Samad. It has also been brought in evidence that the place of incident is a thickly populated area, which is surrounded by houses, bus stop and marriage lawn, despite this fact, police did not bother to associate any independent person of the locality to witness the recovery proceedings. In my view, provision of Section 103, Cr.P.C. is mandatory in nature and cannot be ignored without any proper justification. The prime object of the above provision is to ensure the transparency and fairness on the part of police during the course of recovery, curb the false implication and minimize the scope of foisting of fake recovery upon the accused.
11. It is significant to mention that Section 34 of Sindh Arms Act, has not expressly excluded the provision of Section 103, Cr.P.C. but on the contrary, Section 34 has provided a legal cover that police officials also can act as witnesses of recovery besides the private persons. The proviso of Section 34 of Sindh Arms Act, provides that any police officer or person present on the spot can be witnessed of search and recovery, therefore, it was prime duty of the police to prefer a private witness if available at the spot to maintain transparency and fairness of the alleged recovery. It is the prime duty of Courts to ensure during the course of the administration of justice that there must be a plausible explanation for non-association of witnesses from public. Adverting to the merits of the case in hand, no valid reason or plausible explanation has been furnished by the prosecution for non-association of independent witnesses by the police when independent people were available at the place of recovery, which is a thickly populated area. Therefore, on this ground false implication of the appellant in this case could not be ruled out.
12. I have also gone through the evidence of prosecution witnesses so made available on record and found the same is contradictory on material particulars of the case to each other. For instance, in the mashirnama of arrest and recovery and FIR at Ex.6 and Ex.8, it reveals that one unlicensed 30 bore pistol having black handle plastic, bearing No.A2274, in words English “made in Pakistan-CAL-7.63-MM.30-Pistol”, was recovered from the possession of appellant in presence of mashirs namely PC Amir Hussain and PC Abdul Samad, whereas, PC Muhammad Amir Hussain in his evidence at Ex.10, has not disclosed the proper description of the alleged weapon. This fact has also not mentioned in the FSL report at Ex.16. Apart from that, it is also mentioned in the FSL report that alleged weapon was in working condition, but no one prosecution witness in his evidence disclosed that alleged weapon recovery from the appellant was in working condition or otherwise. These aspects of the case created doubt in the prosecution case. When all these aspects confronted with learned Additional Prosecutor General, Sindh, she has not replied satisfactory. Nothing on record that appellant is previously convict or he had remained indulged in such like cases.
13. During the course of arguments, learned Counsel for appellant also contended that instant case is offshoot of Crime No.132 of 2015 registered at police station New Karachi, under Section 353/324/34, PPC, in which mashirnama of arrest and recovery was same and learned trial Court has acquitted the present appellant by disbelieving the mashirnama of arrest and recovery; hence, on this ground conviction could not be maintained in instant case.
14. Admittedly, in this case, there are number of infirmities/lacunas, which have created serious doubt in the prosecution case. It is settled principle of law that for extending benefit of doubt, it is not necessary that there should be multiple circumstances creating doubt. If a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in the case of Tariq Pervez v. The State reported as 1993 SCMR 1345, wherein the Hon’ble Supreme Court has held as under:-
“The concept of benefit of doubt to an accused personsis deep-rooted in our country for giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.”
15. For the above stated reasons, while respectfully relying upon the above cited case law, I have no hesitation to hold that prosecution has failed to prove its’ case against the appellant beyond any shadow of reasonable doubt. Consequently, Appeal is allowed, conviction and sentence awarded by the trial Court vide judgment dated 27.04.2017 are set-aside. Appellant is present on bail, his bail bond is cancelled and surety stands discharged.
JUDGE
Faizan A. Rathore/PA*