HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No.471 of 2019
Appellant : Amir Khan Niazi son of Zarfarullah Khan,
through Mr. Aamir Nawaz Warraich, Advocate.
Respondent : The State through Mr. Sagheer Ahmed
Abbasi, Assistant Prosecutor General, Sindh.
Date of hearing : 23.08.2019
Date of Judgment : 23.08.2019
J U D G M E N T
Abdul Maalik Gaddi, J.– Appellant Amir Khan Niazi son of Zafarullah Khan has filed this appeal challenging the judgment dated 19.08.2019, passed by the learned Additional Sessions Judge-IX, Karachi (South), in Sessions Case No.277 of 2017, arising out of Crime No.28 of 2017, registered at police station Napier, Karachi, under Section 23(i)(a) of Sindh Arms Act, 2013, whereby the appellant has been convicted and sentenced under Section 265-H(ii), Cr.P.C. for offence under Section 23(i)(a) of Sindh Arms Act, 2013, to suffer R.I. for six (6) months with fine of Rs.2000/- and in case of default in payment of fine, it was further ordered that appellant shall suffer S.I. for seven (7) days 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 on 08.02.2017, police party headed by ASI Safdar Mehmood of police station Napier, Karachi, along with his subordinate staff were busy on patrolling and during patrolling, when they reached at KMC Hall, Old Timber Market, Syed Mehmood Shah road, Karachi, they saw one person present there in suspicious condition, therefore, police party apprehended him and on inquiry, he disclosed his name as Amir Khan Niazi @ bomb son of Zafarullah Khan. On personal search, police recovered one unlicensed 30 Bore T.T. Pistol along with loaded magazine, four live bullets, rubbed number, dasta of butt was broken and on barrel, 7.63MM(30) was written on it, from his possession. As appellant could not produce the license of said weapon, therefore, he was arrested on spot in presence of mashirs under memo of arrest and recovery. Thereafter, police party brought the appellant alongwith case property at police station, where the aforesaid FIR was lodged against the present appellant.
3. The charge was framed on 06.04.2017 at Ex.2 against the accused by the learned trial Court, to which he pleaded not guilty and claimed to be tried vide his plea at Ex.2/A.
4. At trial, in order to establish accusation against appellant/accused, prosecution had examined following witnesses:-
i. PW-1/complainant ASI Safdar Mehmood at Ex.3, who produced memo of arrest and recovery, FIR and memo of place of inspection at Ex.3/A to Ex.3/C respectively;
ii. PW-2 SIP Israr Khan at Ex.4, who produced entry No.50, entry No.53, letter for sending the property to FSL and FSL report at Ex.4/A to Ex.4/D respectively;
iii. PW-3 PC Ejaz Ahmed at Ex.5.
These witnesses were cross examined by the Counsel for appellant. Thereafter, leaned ADPP closed the prosecution side vide Statement at Ex.6.
5. Statement of appellant was recorded under Section 342, Cr.P.C. at Ex.7, 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 alleged weapon has been foisted upon him. However, appellant neither examined himself on Oath nor led any evidence in his defence.
6. Mr. Amir Nawaz Warraich, the learned Counsel for appellant contended that appellant is innocent and has been falsely implicated by the police; that the alleged recovery of weapon has been foisted upon him; that 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 towards the evidence of prosecution witnesses 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, hence, prayed for acquittal of appellant.
7. In contra, Mr. Sagheer Ahmed Abbasi, learned Assistant 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 30 Bore T.T. Pistol along with loaded magazine, four live bullets was recovered from his possession in presence of mashirs and said weapon was in working condition, so also the mashirs have fully supported the case of prosecution; that 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. After going through the record, I have come to the conclusion that the prosecution has failed to prove its’ case against the appellant for the reasons that as per memo of arrest and recovery at Ex.3/A and FIR at Ex.3/B, the incident took place on 09.02.2017 at about 0030 hours, while contradicting this fact, PW-1/complainant ASI Safdar Mehmood in his evidence at Ex.3, disclosed the incorrect date of incident by deposing that on 08.02.2017, he was posted as ASI at police station Napier, Karachi, and on same day, he was on patrolling on police mobile and in this regard. Moreover, as per memo of arrest and recovery at Ex.3/A, on the relevant date and time, police party left the police station vide roznamcha entry No.42, but it is surprising to note that said entry was not produced by PW-1/complainant ASI Safdar Mehmood in his evidence at Ex.3. In my opinion, non-production of entry in roznamcha by the prosecution in Court to prove the movement of police from the police station to the place of recovery of weapons cuts at the root of the prosecution case making the entire episode doubtful and the prosecution version unbelievable. In this regard, I am fortified with the case of Abdul Sattar and others v. The State reported as 2002 P.Cr.L.J 51.
11. Furthermore, as per prosecution, the alleged incident took place in a thickly populated area i.e. KMC Hall, Old Timber Market, Syed Mehmood Shah road, Karachi, but despite this fact, complainant ASI Safdar Mehmood did not bother to associate any private person from the place of incident to witness the recovery proceedings, which makes the case of prosecution to be doubtful. Not only this, as per FIR at Ex.4/B, the alleged incident took place on 09.02.2017, whereas, by contradicting this fact, PW-2/IO SIP Muhammad Israr Khan in his evidence at Ex.4, deposed that on 08.02.2017, he was posted at police Napier and on same day he received the investigation of this crime. This fact itself shows that perhaps the incident had not taken place in a fashion as stated in FIR or otherwise. Moreover, PW-2 SIP Muhammad Israr Khan in his evidence at Ex.4, produced the FSL report at Ex.4/D showing that the alleged weapon recovered from the appellant is without number, whereas, memo of arrest and recovery and FIR at Ex.4/A and Ex.4/B showing that the said weapon was rubbed number. Thus, the foistation of the alleged weapon upon the appellant with due deliberation and consultation could not be ruled out.
12. Apart from that, as per FIR at Ex.4/B, one unlicensed 30 Bore T.T. Pistol along with loaded magazine, four live bullets, rubbed number, dasta of butt was broken and on barrel, 7.63MM(30) was written on it, was recovered from the possession of the appellant, but it is surprising to note that FSL report available on record at Ex.4/D does not show these descriptions of the weapon. This fact creates doubt in the prosecution case. Likewise, as per FIR at Ex.4/B, on the relevant date and time in the place of incident, the present appellant was found in suspected condition while he was coming on motorcycle, but on perusal of the evidence so brought on record by the prosecution witnesses, none of the witness had deposed the fact that present appellant was coming on motorcycle; under the circumstances, no reliance can safely be placed on the contradictory evidence of the prosecution witnesses, which is full of doubt.
13. 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 person are 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.”
14. 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 19.08.2019 are set-aside. Appellant is in jail, therefore, jail authorities are directed to release the appellant forthwith, if he is not required in any other case.
JUDGE
Faizan A. Rathore/PA*