IN THE HIGH COURT OF SINDH, SUKKUR BENCH, SUKKUR

Cr. Jail Appeal No.S-13 of 2020

PRESENT:-

Mr. Justice Zulfiqar Ali Sangi

Appellant: Wahid Bux @ Wahido Shaikh through Mr. Muhammad Nasir Malik, Advocate.

State: Through Mr. Khalil Ahmed Maitlo, DPG

Date of hearing: 01.11.2021

Date of decision: 12.11.2021

J U D G M E N T

Zulfiqar Ali Sangi, J: Through this criminal jail appeal, the appellant has assailed the judgment dated 25.01.2020 (impugned herein) passed by learned 1^st Additional Sessions Judge/MCTC, Sukkur whereby appellant was convicted under Section 24 Sindh Arms Act, 2013 and sentenced to suffer the period already undergone by him with fine of Rs.5000/- and in case of default in payment of fine, he shall further suffer imprisonment for 15 days more. However benefit of Section 382-B Cr.P.C was extended to him.

2. The facts as per FIR are that complainant ASI Imtiaz Ali Mangi lodged FIR at P.S, Bagerji alleging therein that on 03.02.2015, he/ASI-Imtiaz Ali Mangi with other staff PC Amanullah Mahar and PC Abdul Rasheed during investigation in Crime No.02/2015 U/S 302 etc PPC of P.S, Tamachani interrogated the accused Wahid Bux @ Wahidoo vide roznamcha entry No.09 at 1145 hours of P.S, Abad, during interrogation accused become ready to produce weapon used in commission of offence, thereafter complainant along with above said staff with arms and ammunition and investigation box left P.S Tamachani in government vehicle driven by DPC Zulfiqar vide roznamcha entry No.14 at 1245 hours and when they reached at sports complex where accused got stopped the vehicle, going ahead and after digging voluntarily took out pistol wrapped in plastic bag and disclosed to be the same weapon used in commission of murder. Due to non availability of private persons ASI appointed PC Amanullah and PC Abdul Rasheed as mashirs and checked the pistol found two live bullets of 30 bore in its magazine and was smelling which was unloaded, same was in working condition, and accused disclosed the same to be unlicensed which was sealed at the spot and prepared such mashirnama of formal arrest and recovery in presence of said mashrs. Thereafter, accused and case property were brought at P.S, Tamachani where entry No.11 at 1500 hours was kept in respect of such fact/recovery of crime weapon thereafter, on the same day at 1600 hours complainant ASI Imtiaz Ali Mangi incorporated same entry into the F.I.R bearing crime No.07/2015 at P.S, Bagerji Tamachani.

3. After registration of FIR, police conducted investigation, and on completion of investigation submitted challan against him before the Court having jurisdiction. After completing all the legal formalities, the trial court initiated trial by supplying copies to the accused as required under Section 265-C Cr.P.C. The charge was framed against the accused to which he pleaded not guilty and claimed trial.

4. The prosecution in support of its case examined PW-01 SIP Imtiaz Ahmed Mangi (Complainant/I.O), PW-02 PC Abdul Rasheed (mashir), they also produced the relevant documents.

5. Statement of accused was recorded under Section 342 Cr.P.C at Ex-8, in which he has denied the allegations of the prosecution and claimed his innocence. However, neither he led evidence in his defence nor examined himself on oath under Section 340(2) Cr.P.C. After recording evidence and hearing the parties, learned trial Court convicted the accused as stated above, hence the instant appeal.

6. At the very outset, learned Counsel for the Appellant has contended that the Appellant is innocent and has falsely been implicated by the police in this case; that there are serious and major contradictions in the evidence of Complainant as well as PWs (mashir); that there is violation of section 103 Cr.P.C as the recovery has been shown from the thickly populated area and the same was admitted by the witness; that evidence of prosecution witnesses is discrepant, therefore, accused may be acquitted of the charge by extending him the benefit of the doubt.

7. Learned Deputy Prosecutor General has mainly contended that all the PWs have deposed in the same line; however some minor contradictions has been pointed out in their evidence and further submitted that the prosecution evidence is confidence inspiring. Lastly he prayed that by dismissing instant appeal, conviction awarded by the learned trial Court may be maintained.

8. I have heard learned Counsel for the Appellant as well as learned Deputy Prosecutor General and have carefully examined the material available on record with their able assistance.

9. On reassessment of the entire evidence produced by the prosecution It is established that the prosecution had not proved the case against the appellant beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence.

10. The prosecution witnesses gave their contradictory evidence in respect of preparing the mashirnama of the recovery of the pistol. Complainant deposed in his examination-in-chief that “I prepared such mashirnama of arrest and recovery.” Complainant also stated during the cross-examination that “I was drafting the memo”. Whereas the mashir deposed during his examination-in-chief that “I then prepared such mashirnama of arrest and recovery”. Mashir during the cross-examination stated that “I do not remember the distance of the position of accused when I was drafting the memo”. The mashir during the cross-examination not supported even his own version in respect of preparation of mashirnama and stated in reply of another question on behalf of the appellant that “Complainant himself drafted the memo of recovery”. In such a situation the recovery proceedings are doubtful.

11. From the evidence of both the prosecution witnesses it is also come on record that pistol produced in court was with some descriptions which both the witness admitted and same descriptions were not mentioned in the mashirnama of the recovery nor in the FIR which too creates doubt in the case of prosecution.

12. The complainant/Investigation officer during his cross-examination stated that “I handed over the recovered weapon to WHC of P.S Tamachani for keeping the same in malkhana. It is correct to suggest that I have not produced such entry.” The prosecution to established safe custody of the recovered weapon not examined the said WHC or any other responsible official (incharge) at Malakhana on the relevant date and time to confirm the deposit of the weapon in malkhana. In this view of the matter, the fact of depositing the weapon in malkhana has become doubtful. In this regard reliance may be placed on the case of Umed Ali v. The State (2018 MLD 1311) and Ikramullah and others v. The State (2015 SCMR 1002).

13. After reassessment of entire evidence produced by the prosecution I found that the pistol was foisted upon the appellant. It was also alleged by the prosecution that the appellant was arrested on 27-01-2015 and the recovery of pistol was affected on 03-02-2015, and same was sent for FSL on 04-02-2015. Both the witnesses admitted during their evidence that the place from where recovery was affected not belongs to the appellant all these facts suggested that the pistol was foisted upon the appellant.

14. It is well settled by now that the prosecution is bound to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty is cast upon the accused to prove his innocence. It has also been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In the case of Wazir Mohammad v. The State (1992 SCMR 1134), it was held by Honourable Supreme Court that "In the criminal trial whereas it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution." Honourable Supreme Court in another case of Shamoon alias Shamma v. The State (1995 SCMR 1377) held that "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case.......Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise."

15. 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 (1995 SCMR 1345), wherein the Hon'ble Supreme Court has held as under:-

"The concept of benefit of doubt to an accused persons is deep-rooted in our country for giving him benefit of doubt, 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 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".

16. In view of the above instant criminal appeal is allowed and the impugned judgment dated: 25.01.2020, passed by 1^st Additional Session Judge/ Model Criminal Trial Court, Sukkur in S. Case No. 98/2015, is hereby set-aside. The appellant is acquitted from the charges and ordered to be released forthwith if not required in any other custody case.

JUDGE