IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Criminal Appeal No.D-71 of 2018

Present:

Mr. Justice Muhammad IqbalMahar.

Mr. Justice Amjad Ali Sahito

Appellant : Abdul Hakeem s/o WaliMuhammad,by caste

DurraniPathan, Presently confined in C.P-I Sukkur

throughMr.Mahfooz Ahmed Awan,Advocate.

State : Through Mr.ZulfiqarAli Jatoi, Additional P.G

Date of hearing : 15.08.2018.

Date of decision : 15.08.2018.

J U D G M E N T

Amjad Ali Sahito, J.–Appellant named above was tried by learned Sessions Judge, Sukkur, inSpecial Case No.425/2016, St.Vs.Abdul Hakeem, for offence punishable under section 24 of Sindh Arms Act, 2013, arising out of Crime No.10/2016 registered with police station Tamachani, whereby, he was convicted and sentenced for an offence punishable under section 24 of Sindh Arms Act, 2013 and sentenced him to suffer Rigorous imprisonment for a term of four(4) years and to pay fine of Rs.10,000/- (Rupees Ten thousand only) or in default to suffer simple imprisonment for 2(two) months. However, the benefit of section 382-B Cr.P.C was also extended to him.

2. The case of the prosecution is that the appellant was arrested in a manner as alleged in F.I.R. No.9/2016 registered at police station Tamachani U/s 9(c) CNS Act by complainant SHO Gul Hassan Soomro alleging that on19.04.2016he along with his subordinates namely ASI Muhammad Khan Chang, PC Anwar Ali, PC Abdul Rasheed and driver PC Hakim Ali left police station to videRoznamcha Entry No.20 at 1745 hours in official vehicle for patrolling within the jurisdiction. During patrolling when they reached Dreha Bus stand, they received spy information that one person having a bluecolored plastic sack on his shoulder containing charas is going by foot via link road of village Warayo. He conveyed such information to his staff and then proceeded towards the pointed place and at about 2015 hours reached the link road leading to village Warrayo situated at the graveyard, they saw a person carrying one blue colored plastic sack on his shoulder. The complainant party apprehended him along with a sack, on opening found 10(ten) slabs of charasin it and a Kalashnikovwith a magazine which was unloaded containing 09(nine) live bullets, were recovered and cash Rs.150/- from his side pocket of the shirt as well. Since private mashirs were not available as such nominating the ASI Muhammad Khan Chang and PC Abdul Rasheed as mashirs, the name and address of apprehended person were inquired to which he disclosed as Abdul Hakeem s/o Wali Muhammad by caste DurraniPathan, a resident of village Nao-Goth Sukkur. The recovered charas was weighed through digital scale and each slab became 1000-gams total 10,000-grams (Ten Kgs), out of which 200-grams from each slap (total 2000-grams) were segregated as samples and sealed separately for chemical analysis and the remaining charas was also sealed separately while the Kalashnikov and bullets were sealed separately. The accused failed to produce the license of the Kalashnikov. The memo of arrest and recovery was prepared with the signatures of above-saidmashirs. Thereafter the accused and recovered property were brought at the police station where separate FIRs under CNS act as well as under 24 of Sindh Arms Act were registered against the accused.

3. The learned trial Court on22.10.2016framed a charge against the appellant at Exh.03, to which hepleaded not guilty and claimed trial.

4. At the trial, in order to establish the accusation against the appellant, the prosecution examined the following witnesses;-

(i) PW-01 I.O/Inspector Jehangir Khan at Exh.04, he produced memo of the place of the incident at Exh.4-A, Chemical report at Exh.4-B, a copy of mashirnama of arrest and recovery at Exh.4-C, FIR at Exh.4-D.

(ii).PW-02 Complainant SIP Gul Hassanat Exh.5, he produced an extract of departure entry at Exh.5-A and inquiry report of ASP Muhammad Essa Khan at Exh.5-B

(iii) PW-3 mashir ASI Muhammad Khan at Exh.6

All these witnesses were cross-examined by the learned counsel for the appellant. Thereafter, the learned District Prosecutor for the State closed the prosecution side vide statement dated 11.01.2018at Exh.7.

5. Statement of the appellant was recorded u/s.342 Cr.PC at Exh.8, in which he denied the prosecution allegations and further stated that he is innocent and lastly prayed for justice. He produced a statement of GhulamNabi U/s 342 Cr.P.C, statement under section 340(2) Cr.P.C, statements of Dilawar Khan and Taj Muhammad, photostat copy of license of Kalashnikov and four FIRs at Exh.8-A to 8-I.However, the appellant did not examine himself on oath in terms of Section 340(2) Cr.P.C nor any defense witness as well.

6. The learned trial Court after hearing the learned counsel for parties and on assessment of the evidence, convicted and sentenced the appellant, as stated above, vide judgment dated 05.06.2018, which he impugned before this Court by way of filingan instantcriminal appeal.

7. On 16.07.2018, it was pointed out by learned counsel for appellant that Crl. Appeal No.D-72 of 2018 is connected to instant appeal as Mashirnama of arrest and recovery is same, as such office was directed to fix both appeals together.

8. Mr.Mahfooz Ahmed Awan, Learned Counsel for the appellant inter-alia contended that the appellant is innocent and has been falsely implicated in this case at the instance of one Saido Khan and otherswith whom there is a murderous enmity and criminal cases are pending trial before the competent court of law; that on 19.4.2016 CIA police of district Sukkur came in Government vehicle arrested the present appellant when he was standing in the street and arrested another relative namely Ghulam Nabi s/o Abdul Salam when he was sitting in the Otaq of late Amanullah Pathan, thereafter both were handed over to SHO P.S.Tamachani who lodged three FIRs being Crime No.8, 9 of 2016 under section 9(c) CNS Act and crime No.10 of 2016 under section 24 Sindh Arms Act against the appellant as well as GhulamNabi; that the relativesof the Appellant namely DilawarKhan and Taj Muhammad as well as accused Ghulam Nabi moved joint application to DIGP Sukkur for conducting free, fair and impartial inquiry about the above mentioned cases and one Inspector Zulfiquar Ali Soomro was appointed as enquiry officer, who after conducting enquiry recommended all the cases to be disposed of under “B” class; that the complainant and PWs being police officials are interested and set-up witnesses; that the evidence of such interested witnesses requires independent corroboration, which is also lacking in the present case; that all the witnesses are police officials and no independent person has been cited as mashir of arrest and recovery, which is in clear violation of mandatory provision of Section 103 Cr.PC; that there are material contradictions between the evidence of PW-1 Inspector Jahangir Khan and PW-2 SIP Gul Hassan, which are sufficient to disbelieve the prosecution story; that as per prosecution the sample was sent to chemical examiner on 20.04.2016 through WPC Aijaz and received on 21.4.2016 with delay of one day when the office of chemical examiner situated at Rohrican be reached safely within one hour, hence tampering with the case property during search period could not be ruled out; that WPC Aijaz Ali through whom the sample was sent to the chemical examiner has not been examined by the prosecution to show safe custody and safe transit of alleged Narcotics substance.He lastly contended that the prosecution has failed to prove its case against the appellant, thus according to him under the above-mentioned facts and circumstances, the appellant is entitled tohis acquittal.

9. On the other hand, Mr.Zulfiqar Ali Jatoi, AdditionalProsecutor General for the State while supporting the impugned judgment has argued that the prosecution has proved its case against the appellant who was found in possession of unlicensed weapon; that the police officials had no enmity to foist such a huge quantity of charas as well as Kalashnikovupon the appellant at his own; he thus lastly prayed for dismissal of instant appeal.

10. We have heard learned counsel for the appellant, learned Additional Prosecutor General for the State and have minutely gone through the record with their able assistance.

11. In the instant case, specific animosity and ill will have been alleged against the police officials, therefore, it was incumbent upon the prosecution to prove its case by examining independent persons of the locality but the police did not examine any person of the locality to witness the recovery proceedings. PW-1 Inspector Jahangir KhanSHO of PS Airport on the orders of SSP Sukkur, started investigation of this case, on 26.4.2016 he received case papers of crime No.9 of 2016 and 10 of 2016 of police station Tamachani along with case property viz.10-sealed parcels and 10-samples of charas as well as one Kalashnikov, he dispatched the Kalashnikov to FSL Larkana. Case property was opened in the court and found one Kalashnikov with the magazine and 5(five) live bullets. Inhis cross-examinationhe admitted that he has not produced any document to ascertain, whether the property was kept in safe custody or not. He also admitted that he did not record the statement of WHC of the police station and the complainant did not handover the copy of the departure and arrival entries. He further admitted that he has not examined the dispatcher of Kalashnikov to FSL. On further cross-examination he replied that he does not know as to whether the inquiry was conducted by Inspector ZulfiqarAli Soomro, the Reader to DIG Sukkur or not and on the furtherquestion, he replied that he does not know whether such inquiry report reflects that Kalashnikov is licensed one and belonging to one Ghulam Nabi Pathan

12. In order to corroborate the evidence of PW-1 Inspector Jahangir Khan, the prosecution has examined complainant SIP Gul Hassan Soomro, who has supported the contention of the mashirnama of arrest and recovery so also FIR. He sent the sample to the chemical examiner, Rohri and the weapon to FSL Larkana for examination and report and thereafter on 26.4.2016 he handover the case paper to SHO Jahangir Mahar for further investigation. In the last, he submits that case property i.e. one Kalashnikov with magazine 9(nine) bullets present in the court as same.In cross-examinationhe admitted that Inspector Zulfiqar Ali Soomro carried out an inquiry in this case on the direction of DIG Sukkur, however, he denied the suggestion that “I do not know whether Inspector recommended the case to be disposed of under “B” class”. In cross-examination, he further admitted that “I do not remember whether that sack (katta) was sealed by me or not”. He admitted that weapon’s number was rubbed but he denied the suggestion that he deliberately rubbed the number F-749281. He also denied that Kalashnikovwas not recovered from the accused and is licensed weapon of one Ghulam Nabi. He denied the suggestion that he accompanied with CIA police, took the weapon from the Otaq of GhulamNabi and then foisted upon present accused, he denied that Ghulam Nabi was also captured by him from his Otaq. He admitted thathe registered another case under CNS Act against Ghulam Nabi. He stated that WHC AijazChachar wrote his departure entry No.20. PW-3 Muhammad Khan ASI also supported the version of the complainant.

13. In this case the Investigating Officer PW-1 Inspector Jahangir Khanclaims thathe received case property of Kalashnikov as well ascharas, on 26.4.2016he dispatched the Kalashnikov to the office of FSL Larkana but from the perusal of FSL report Ex-4/B, it reveals that on 20.4.2016 it was dispatched to the office of Forensic Division of Larkana and same was received on 22.4.2016, but in this report nowhere it is mentioned that through whom this property was sent to the office of FSL Larkana nor any entry has been produced in the evidence that as an when Kalashnikov was taken out from the Mal-Khana of P.S.Tamachani and sent to the office of Forensic Division Larkana. It is surprising to say that on 19.4.2016 the appellant/accused and property after his arrest brought at P.S.Tamachanibut nowhere in the FIR Ex-4/D or in Ex-4/C, it is mentioned that the case property was kept in the Mal-Khana of the P.S.Tamachani. PW-1 Jahangir Khan in his chief he admits that he has sent the case property to FSL Larkana, but no documentary evidence has been brought on the record that as and when the case property was shifted from P.S.Tamachani to P.S.Airport. Furthermore, if PW-1 Jahangir Khan has sent the Kalashnikov on 26.4.2016 to the office of chemical examiner but as per FSL report, same was received on 22.4.2016, which creates doubt upon the truthfulness of these witnesses.

14. Moreover, PW-2 SHO Gul Hassan failed to produce the arrival entry of police station to believe that after the arrest of the appellant, he along with the accused and property brought at the police station and lodged the instant FIR. From the perusal of departure Entry No.20 it is transpired that PC Nawab Ali was along with the SHO P.S.Gul Hassan Soomro for patrolling but nowhere in the FIR as well as in the mashirnama of arrest and recovery, it has been mentioned that PC Nawab Ali was with them, even SHO Gul Hassan Soomro failed to disclose in the entry that in which vehicle they left police station

15. Apart from above material infirmities and contradictions in the prosecution evidence rendering the prosecution case highly doubtful, there are several other infirmities and discrepancies which need not be discussed just to save the space. It needs no reiteration that a single circumstance creating reasonable doubt in the prudent mind about the guilt of the accused, benefit thereof is to be extended to the accused not as a matter of grace or concession but as a matter of right.The reliance in that context is placed on the case of Muhammad Masha v. The State (2018 SCMR-772), wherein the Hon’ble Supreme Court of Pakistan has heldthat:

4.--- Needles to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of accused, then accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right. It is based on the maxim,”it is better that ten guiltpersons be acquitted rather than one innocent person be convicted”. Reliance in this behalf can be made upon the cases of TariqPervez

v. The State(1995 SCMR-1345), Ghulam Qadir and 2 others v. The State(2008 SCMR-1221), Muhammad Akram v. The State(2009 SCMR-230) and Muhammad Zaman v. The State(2014 SCMR-749).

16. The over-all discussion involved a conclusion that the prosecution has failed to prove its case against the appellant beyond a reasonable doubt, therefore, while extending the benefit of doubt, appeal was allowed by a short order dated 15.8.2018, and the conviction and sentence recorded by the trial Court were set aside and the appellant was acquitted of the charge and was ordered to be released from the custody forthwith if not required in any other criminal case.

-17. These are the detailed reasons for the short order dated 15.8.2018 announced by us.

JUDGE

JUDGE-