THE HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No.786 of 2024
Present:
Mr. Justice Shamsuddin Abbasi
Applicant : Irfan son of Dost Muhammad through Mr. Ghulam Mustafa Baloch, advocate
The State : Through Mr. Neel Parkash, D.P.G. Sindh
Date of Hearing : 28.04.2025
Date of Judgment : 28.04.2025
JUDGMENT
Shamsuddin Abbasi, J.— Appellant Irfan son of Dost Muhammad Shoro was
tried by learned Additional Sessions Judge-I/MCTC Thatta for offence under
section under section 23(1)(a), Sindh Arms Act, 2013. On the conclusion of
trial, vide judgment dated 14.11.2024 appellant Irfan
was convicted under section 23(1)(a), Sindh Arms Act, 2013 and sentenced to
suffer 14 years' R.I and to pay fine of Rs.50,000/-, in case of default in
payment of fine, he was ordered to undergo S.I. for 03 months more. Appellant
was extended benefit of section 382-B, Cr.PC.
2. Brief facts leading to the filing of instant
Appeal are that on 09.12.2022, SIP Bashir Ahmed Mallah,
SHO PS Kinjhar Lake while patrolling in the area
along with his subordinate staff received information that one person armed
with gun is coming towards National Highway. Upon such information police party
rushed towards the pointed place where the present appellant was apprehended at
2130 hours, single barrel gun he was carrying was taken into possession; upon
inquiry he disclosed his name as Irfan son of Dost
Muhammad Shoro; on his personal search seven live
cartridges and Rs.300/- were recovered; he was asked about license of the gun
but he failed to produce it. Accused was arrested and case property was sealed
at the spot in presence of mashirs, namely, PC
Muhammad Hassan and PC Amjad Ali. Thereafter, accused
and the property were brought at police station and subject FIR was lodged on
behalf of the State under section 23(1)(a), Sindh Arms
Act, 2013. Thereafter, investigation was handed over to ASI Sher
Afzal Jokhio, who completed
the investigation and on the conclusion of usual investigation submitted challan against accused for offence under section 23(1)(a), Sindh Arms Act, 2013.
3. A trial, prosecution examined PW-1
Muhammad Hassan, PW-2 Bashir AHmed
Mallah, PW-3 Rab Nawaz,
PW-4 Murad and PW-5 Sher Afzal. Thereafter, prosecution side was closed. Trial Court
recorded statement of accused under section 342, Cr.PC, in which appellant
claimed false implication in this case and denied the prosecution allegations
and raised plea that he was arrested from Thatta City at the instance of his
opponents, he is innocent, crime weapon has been foisted upon him and police
has lodged false case against him. Appellant did not examine himself on oath
under section 340(2), Cr.PC and led any evidence in his defence.
On the conclusion of trial, learned trial Court after hearing the learned
Counsel for the parties and assessment of evidence, vide judgment dated 14.11.2024
convicted and sentenced the appellant as stated above.
4. The facts of the case as well as
evidence produced before the trial Court find an elaborate mention in the
judgment passed by the trial Court, therefore, same
need not be reproduced here so as to avoid duplication and unnecessary
repetition.
5. I have heard learned advocate for the
appellant, learned D.P.G. for the State, examined and assessed the prosecution
evidence.
6. Adverting to the recovery of unlicensed
revolver from the possession of appellant, suffice to observe that incident had
taken place at a busy place near Mangoes Garden, despite the complainant did not bother to associate an
independent source to strengthen prosecution case by collecting any independent
evidence. Thus, to that extent the contention of the learned
counsel for appellant remains firmed. The manner of arrest and recovery as
narrated through evidence recorded by the police officials has lost its
sanctity. I am also conscious of the fact that there should some plausible
explanation that actually attempts were made to associate an independent
witness from the locality, when otherwise under the circumstances of the
present case the appellant has pleaded his false implication and even denied
his arrest as well as recovery of revolver from the place of occurrence or at
the time as shown by the prosecution, hence association of an independent
witness was necessary to attest the arrest and recovery proceedings, but
admittedly no such efforts were made either by the complainant at the time of
preparation of memo of arrest and recovery or by the investigating officer
while conducting site inspection. Admittedly, the mashirs
of recovery and site inspection are police officials. No explanation has been
furnished by the prosecution for non-associating a private witness. The
facts and
circumstances of the case disclosed that there had been sufficient opportunity
to the prosecution to join an independent person to witness the arrest and
recovery, but no attempt was even made in this respect as such there is obvious
violation of Section 103 Cr.P.C. The Hon’ble Supreme Court in the case of Tayyab Hussain Shah v The
State (2000 SCMR 683) held as under:-
“The plea of the accused was that the gun had been
planted on him and this fake recovery was proved by the police witnesses
namely, the Investigating Officer alongwith the Foot
Constable. The plea is that the said recovery is of no evidentiary value as the
same was made in violation of requirements of section 103, Cr.P.C.
In the case of State through Advocate General, Sindh v. Bashir and others (PLD
1997 SC 408) Ajmal Mian,
J., as he then was, later Chief Justice of Pakistan, observed that requirements
of section 103, 'Cr.P.C. namely that the two members
of the public of the locality should be Mashirs to
the recovery, is mandatory unless it is shown E by the prosecution that in the
circumstances of a particular case it was not possible to have two Mashirs from the public. If, however, the statement of the
police officer indicated that no effort was made by him to secure two Mashirs from public, the recoveries would be doubtful. In
the instant case, from the statement of the Investigating Officer it is
apparent that no efforts were made to join any member of the public to witness
the said recovery. In F the overall circumstances of the case, we do not find
it safe to rely on the said recovery. Once recovery of gun is
considered doubtful the report of the fire-arm expert that the empty statedly recovered from the spot matched with the gun loses
its significance”.
7. No doubt applicability of Section 103, Cr.P.C.
is ousted as is embodied under Section 34, Sindh Arms Act, 2013, and the police
witnesses are good witnesses as that of any other person from the public but
when the police witness was going to charge a person for an offence which
carries punishment in shape of detention then it was incumbent upon the police
to associate independent persons to witness the arrest and recovery
proceedings. Furthermore separate FIRs were registered for alleged recovery of
revolvers, but there was a joint mashirnama, which is
not inadmissible and has no legal value in the eyes of law. It is settled
principle of law that every accused would be presumed to be innocent and may
not be termed as criminal unless found guilty of charge by the competent Court
of law after safe trial. The recovery, thus, is fatal to the case of the
prosecution.
8. From perusal of record it appears that all
the prosecution witnesses are police officials and it is settled by now that
police officials are as good witnesses as any other independent witness but
proprietary of safe administration demands that there evidence must be
scrutinized with care and caution. In the present case, it is alleged in the mashirnama of recovery, FIR and depositions of PW-1 PC
Muhammad Hassan (Mushir) and complainant/PW Bashir
Ahmed that they recovered three currency notes of Rs.100/-, totaling Rs.300/-
from the front pocket of shirt of appellant but it is a matter of record that
when the case property was opened in open Court, 7 currency note of Rs.100/- each
were found in the envelope, which creates doubt about the safe custody of the
case property and creates serious dent in the prosecution case. Another aspect
of the case is that alleged gun was recovered from the possession of appellant
on 09.12.2022 at 2130 hours and FIR of the alleged incident was lodged on the
same date at 2230 hours, which is time of arrival of the police party at police
station, which is not possible to make entry in the roznamcha
entry book and lodgment of FIR at the same time. It has also come on record
that prosecution has produced photostat copies of
entry of malkhana and other entries on the record and
failed to produce the original record before learned trial Court. Perusal of
evidence PWs further revealed that PW-3 Rabnawaz had deposed
that complainant handed over him one parcel, containing one Gun TT Pistol along with seven live cartridges
and cash Rs.300/-. He further deposed that on 10.12.2022 PC Mureed took sealed parcel
of weapon and cartridges for deposit before FSL Hyderabad and on the same day PC Mureed
returned to PS and handed over him receipt of FSL whereas PW-4 PC Mureed deposed that on 12.12.2022
he went to Hyderabad and deposited the parcel with FSL Hyderabad and returned
on the same day i.e.12.12.2022. Therefore, it is clear that safe custody and safe
transmission of the weapon/case property was not established by prosecution at
trial. I am conscious of the fact that all PWs are police officials and they
must know the difference between gun and T.T. pistol despite that PW Rabnawaz deposed that he deposited Gun T.T. Pistol. It is
settled principle of law that when prosecution fails to produce the evidence
before the trial Court regarding safe custody and safe transmission of the
weapons, then the same cannot be used against the accused for conviction.
Reliance is placed upon the case reported as Kamal Din v. The
State (2018 SCMR 577). Relevant portion is reproduced hereunder:-
"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."
9. It is settled law that for giving the
benefit of doubt to an accused it is not necessary that there should be many
circumstances creating doubt in the prosecution case. If there is single
circumstance creating reasonable doubt in a prudent mind about the guilt of the
accused, then accused would be entitled for benefit of such doubt, not as a
matter of grace and concession, but as a matter of right. In this regard,
reliance is placed on the case reported as Muhammad Mansha
v. The State (2018 SCMR 772), wherein the Honourable
apex Court has held as under:-
"Needless
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
circumstance which creates a reasonable doubt in a prudent mind about the guilt
of the accused, then the 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 guilty persons be acquitted rather
than one innocent person be convicted". Reliance in this behalf can be
made upon the cases of Tariq Pervez v. The State (1995 SCMR
1345), Ghulam Qadir and 02
others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230)
and Muhammad Zaman v. The
State (2014 SCMR 749).
10. After re-appraisal of evidence, I have come
to the conclusion that trial Court failed to appreciate the evidence on sound
judicial principles. At the conclusion of the arguments, by short order dated 28.04.2025,
for the reasons to be recorded later on, appeal was allowed and appellant Irfan Shoro son of Dost Muhammad was
directed to be released forthwith unless required to be detained in any other custody
case. These are the reasons for allowing the appeal and directing the acquittal
of appellant.
J
U D G E
Gulsher/PS