IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Appeal No.S-86 of 2021
Appellant : Shoukat Ali Sundrani, through Mr. Mohammad Afzal
Jagirani, advocate for the appellant..
Respondent : The State, through Mr. Shafi Mohammad Mahar,
Deputy Prosecutor General.
Date of hearing : 03-10-2022.
Date of Judgment : 03-10-2022.
J U D G M E N T.
NAIMATULLAH PHULPOTO, J.- Appellant Shoukat Ali son of Abdul Qadir, by caste Sundrani, was tried by learned Additional Sessions Judge-II, Jacobabad, in Sessions Case No.228 of 2021, re-The State v. Shoukat Ali Sundrani, arising out of Crime No.21 of 2021, registered at Police Station Abad, District Jacobabad. On the conclusion of the trial, vide judgment dated 27.11.2021 the appellant was convicted for offence under Section 23(1)(a) of Sindh Arms Act, 2013 and sentenced to suffer R.I. for 05 years and to pay fine of Rs.30,000/-. In case of default in the payment of fine, the appellant was directed to undergo S.I. for 03 months more. Appellant was extended benefit of Section 382-B, Cr.P.C.
2. Brief facts of the prosecution case leading to the filing of the appeal are that on 13.07.2021 ASI Ali Nawaz Mahar left police station vide entry No.12 at 1730 hours along with his subordinate staff in the Government vehicle for patrolling duty. While patrolling at various places police party reached near Agriculture College at 1745 hours and saw appellant standing on the side of the road. ASI found him in suspicious condition, but appellant when saw the police party tried to run away but he was apprehended by the police. ASI conducted personal search of the appellant in presence of mashirs PCs Badaruddin and Ghulam Murtaza and recovered one unlicensed T.T. Pistol with erased number, containing 05 live bullets in it’s magazine and another magazine containing 04 live bullets from the left fold of his shalwar. Appellant failed to produce the license. ASI arrested the accused in presence of the mashirs PCs Badaruddin and Ghulam Murtaza, sealed the property at the spot and prepared the mashirnama of arrest and recovery. Thereafter, accused and the property were brought at the police station, where ASI registered FIR against the accused on behalf of the State vide Crime No.21/2021 for offence under Section 23(1)(a) of Sindh Arms Act, 2013.
3. During investigation unlicensed T.T. Pistol and live bullets were sent to the Ballistic Expert through PC Israr Ahmed. Report was received. On the conclusion of the investigation, challan was submitted against the accused in this case under Section 23(1)(a) of Sindh Arms Act, 2013.
4. Trial Court framed the charge against the accused under the above-referred Section at Ex.03. Appellant pleaded ‘not guilty’ and claimed to be tried. At the trial, prosecution examined complainant ASI Ali Nawaz and mashir PC Badaruddin. They produced the relevant record. Thereafter, prosecution side was closed.
5. Learned trial Court recorded statement of accused under Section 342, Cr.P.C, in which he claimed false implication in the case. Appellant did not examine himself on oath u/s 340(2), Cr.P.C. in disproof of the prosecution allegations. Appellant did not produce any evidence in his defence. On the conclusion of the trial, appellant was convicted for offence under Section 23(1)(a) of Sindh Arms Act, 2013 and sentenced as stated above. Hence, this criminal appeal has been filed.
6. Learned advocate for the appellant contended that the appellant was arrested near Agriculture College on the road. It was evening time. No private person was associated by the ASI; that prosecution has failed to prove the safe custody of the weapon at police station and it’s safe transmission to the Ballistic Expert; that head moharrar of the police station and PC Israr Ahmed, through whom the property was dispatched to the expert were not examined by the prosecution at trial; that private persons available at the time of arrest and recovery were not examined; that there is over-writing in the Roznamcha entry produced before the trial Court at Ex.5/C and no explanation has been furnished by the prosecution. It is submitted that these circumstances have created doubt in the prosecution case, benefit of which may be extended to the appellant. In support of the submissions, reliance is placed upon the case of TAJAMAL HUSSAIN SHAH v. THE STATE and another (2022 SCMR 1567).
7. Mr. Shafi Mohammad Mahar, learned Deputy Prosecutor General, argued that appellant was arrested by the police officials and an unlicensed T.T. Pistol was recovered from his possession. Police officials have no enmity to falsely implicate the appellant and prayed for dismissal of the appeal.
8. The facts of this case as well as evidence produced before the trial Court find the elaborate mention in the impugned judgment passed by the trial Court dated 27.11.2021, hence the same need not to be repeated here so as to avoid duplication and unnecessary repetition.
9. I have carefully heard the learned Counsel for the parties and re-examined the evidence minutely.
10. From the re-appraisal of the evidence, I have come to the conclusion that prosecution had failed to prove it’s case against the appellant and trial Court had failed to appreciate the evidence according to the sound judicial principles. It is the matter of the record that the appellant was arrested near Agriculture College on the road side and 2/3 private persons were available at that time, but investigation officer failed to associate them for making as mashirs in this case, without plausible explanation. It may be observed that appellant in his statement recorded u/s 342, Cr.P.C. had raised specific plea that he used to sell milk and refused to give the same to the police officials, he has been falsely implicated in this case. Prosecution had also failed to prove the same custody of the T.T. Pistol and its safe transmission to the Ballistic Expert. Head Moharrar of the police station and PC Israr Ahmed, who had taken weapon to the Ballistic Expert were not examined at trial. Reference in this context may be made to the case of KAMAL DIN alias KAMALA v. THE STATE (2018 SCMR 577), wherein the Honourable Apex Court has held as under:-
“4. As regards the alleged recovery of a Kalashnikov from the appellant’s custody during the investigation and its subsequent matching with some crime-empties secured from the place of occurrence suffice it to observe that Muhammad Athar Farooq DSP/SDPO (PW18), the Investigating Officer, had divulged before the trial Court that the recoveries relied upon in this case had been affected by Ayub, Inspector in an earlier case and, thus, the said recoveries had no relevance to the criminal case in hand. Apart from that safe custody of the recovered weapon and its safe transmission to the Forensic Science Laboratory had never been proved by the prosecution before the trial Court through production of any witness concerned with such custody and transmission.”
11. There is also over-writing in the Roznamcha entry produced before the trial Court at Ex.5/C. Prosecution could not explain it. Moreover, prosecution failed to produce some independent piece of evidence for the purpose of corroboration of the evidence of the prosecution witnesses, which is based solely on the evidence of the police officials. No doubt, evidence of the police officials cannot be discarded simply because they belong to police force. Where, however, the fate of the accused person hinges upon the testimony of police officials alone, it is necessary to find out if there was any possibility of securing independent persons at the time. It would be unsafe to rely upon the evidence of the police officials without independent corroboration. Judicial approach has to be cautious in dealing with such evidence, as held in the case of SAIFULLAH V. THE STATE (1992 MLD 984 Karachi).
12. Some material contradictions have aIso been pointed by the defence Counsel in the evidence of the prosecution witnesses. In my considered view, prosecution had failed to prove its case against the appellant. Circumstances mentioned above have created reasonable doubt in the prosecution case. It is settled law that it is not necessary that there should be many circumstances creating doubts. If there is single 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. In this regard, reliance can be placed upon the case of TAJAMAL HUSSAIN SHAH v. THE STATE and another (2022 SCMR 1567), wherein the Honourable Supreme Court has observed as follows:-
“It is a settled law that a single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable, trustworthy and reliable evidence. Any doubt arising in prosecution case is to be resolved in favour of the accused.”
13. For the aforesaid facts and reasons, the appeal is allowed. The conviction and sentence recorded by the trial Court vide impugned judgment dated 27.11.2021 passed by the learned Additional Sessions Judge-II, Jacobabad are set aside and appellant Shoukat Ali Sundrani is acquitted of the charges. Counsel for the appellant submits that he could not inform the appellant, hence the appellant could not appear today. The bail bonds of the appellant are cancelled and his surety is discharged.
JUDGE
Qazi Tahir PA/*