ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Cr. Revn. Appln. No.S-06 of 2010.
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DATE OF HEARING |
ORDER WITH SIGNATURE OF HON’BLE JUDGE |
12.03.2010.
For Katcha Peshi.
Mr. Sobhraj L.P., advocate for the applicant.
Mr. Naimatullah Bhurgri, State Counsel.
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SHAHID ANWAR BAJWA, J.- Present applicant was in custody in connection with crime No.72/2008 of Police Station Kamber. It was a crime under, inter alia, Section 302, PPC and it was stated in that case that the offence was committed while using a pistol.
2. It is stated in the F.I.R. that during interrogation by police the present applicant confessed his guilt by disclosing that the pistol which he used for the purpose of the offence has been kept by him beneath a Babool tree near the tubewell of Manzoor Kalhoro on the road going from Kamber to Khairpur Juso road in a plastic bag with its magazine and two bullets. Inspector Habibullah Malik, SIO Kamber left the police station in a private car at 1130 hours against Roznamcha Entry No.6 of 13.4.2008 and went to the pointed place. When they reached the place, the present applicant is stated to have asked Inspector Habibullah Malik to stop the car. They saw the Babool Tree on the western side of the road and a room of tube-well on eastern side. Private mashirs Deedar Ali and Ali Khan Vako were called. It is stated in the F.I.R. that thereafter the accused produced from the root of the standing bunch of the Babol tree the pistol, the magazine and two live bullets.
3. After F.I.R. was registered, challan was filed and learned Civil Judge & Judicial Magistrate-I, Kamber vide judgment dated 11.8.2009 convicted the present applicant under Section 13(e) of the Pakistan Arms Ordinance, 1965 and sentenced him to suffer R.I. for 10 months and to pay fine of Rs.10,000/- and in case of default in payment of fine to further undergo imprisonment for one month. Benefit of Section 382-B, Cr.P.C was also extended to the applicant.
4. Being aggrieved by the judgment of the trial Court, appeal was filed before the Sessions Judge, Kamber-Shahdadkot, who vide judgment dated 18.01.2010 dismissed the appeal and maintained the judgment of the trial Court.
5. This revision application under Section 435, read with Section 439, Cr.P.C has been filed to challenge and impugn the judgments of the two Courts below.
6. Inspector Habibullah appeared as the first witness. He narrated the incident leading to interrogation, leading to alleged confession and leading to reaching the place. Thereafter, he stated that accused led the party towards the tube-well of one Manzoor Kalhoro. Witness stated that he arranged two private mashirs, namely, Deedar Ali and Ali Khan. He further stated that thereupon the accused voluntarily produced one pistol, its magazine and two live bullets from the bushes near a Babol Tree on western side of the tubewell. He further stated that he sealed the case property and prepared memo of arrest etc at the spot. During cross-examination he admitted that he had not produced the Roznamcha entry of his departure from the police station. He also admitted that driver of the private car was not taken as a mashir. He admitted that the mashir Deedar Ali and Ali Khan are not residents of the locality of the place of incident. He stated that he called both the mashirs from their village for the purpose of recovery. He stated that he had sent the pistol for report by Ballistics Expert, but he did not produce the report of Ballistics Expert. He stated that signatures of both the mashirs as well as the complainant are available on the case property.
7. ASI Gulzar Ali was the next witness. He was writer of F.I.R. He is not a witness of the recovery. He admitted that at the time of registration of F.I.R, Inspector Habibullah did not appear before him. He admitted that case property was not received by him at the time of recording F.I.R.
8. Mashir Deedar Ali was the third witness. He stated that he was present at the place of recovery when the police reached there. He further stated that the present applicant voluntarily produced the pistol etc from bunch of Babool Trees. He admitted that he was also mashir of seeing the dead body in the main crime bearing No.72/2008. He admitted that he was mashir of arrest of present applicant. He admitted that the plastic bag in which the pistol was wrapped was not produced in the Court. He admitted that complainant Khalid Hussain was son of his niece.
9. Learned Counsel for the applicant made the following submissions:-
i) Habibullah Malik stated in his evidence that he arranged for two private mashirs, whereas mashir Deedar Ali stated that he was already present at the place of recovery when the police party reached there,
ii) Mashir Deedar Ali is an interested person, firstly because he is a close relative of the complainant and secondly because in crime No.72/2008, under section 302, PPC, he was mashir not only of seeing the dead body but also mashir of arrest of the present applicant,
iii) In the F.I.R. there is no statement that the property was sealed at the spot;
iv) Roznamcha entry has not been produced;
v) It is stated by the complainant that pistol was sent for examination by the Ballistics Expert. No report of the Ballistics Expert has been produced and there is no explanation whatsoever as to how, if the pistol was examined by the Ballistics Expert, the seals remained intact.
vi) The complainant stated that the pistol was recovered from bushes near the Babool Tree, whereas the mashir stated that the pistol was recovered from a bunch of Babool Trees.
10. Learned Counsel relied upon a number of case law, to which I shall refer in their due place.
11. Mr. Naimatullah Bhurgri, learned State, stated that since the punishment awarded is 10 months and since the applicant has already undergone seven months, he would not oppose this appeal if the punishment is converted into already undergone. This proposition was not acceptable to Mr. Sobhraj. Thereafter, Mr. Bhurgri submitted that both the mashirs are private and, therefore, Section 103, Cr.P.C has been completely followed. He further submitted that no enmity has been shown between the mashirs and the present applicant. He further submitted that there may be minor contradictions in the evidence, but minor contradictions have not shaken the foundation of the case of prosecution. He, therefore, supported the impugned judgment.
12. I have considered the submissions made by the learned Counsel and I have also gone through the record.
13. First I will take up the question of Roznamcha entry. It is stated by the complainant in the F.I.R. that he left the police station under Roznamcha entry No.6 of 13.4.2008. He did not make any such statement in his examination-in-chief regarding the number of Roznamcha entry. In the cross-examination he admitted that he had not produced the Roznamcha entry. In Abdul Sattar & others v. The State, 2002 P.Cr.L.J. 51, the allegations in the F.I.R. were that while in custody the accused voluntarily led the police and produced one unlicensed Kalashnikov alongwith its ammunition, which was recovered from the house of the appellant. These were bare facts of one of the appeals although the judgment in question dealt with as many as five appeals. Regarding Roznamcha entry it was as observed as under:-
“3. Admittedly, in neither of the cases in hand Roznamcha entry was produced by the prosecution in order to prove that the police, in fact, proceeded to the place of scene to recover the alleged weapons. This lapse on the part of prosecution has cut the root of the case of prosecution, thus, rendering the entire episode shrouded by doubt. This fact by itself was enough to disbelieve the prosecution version. Reference can be made to the case of Fareed Ahmed Langra v. The State reported in 1998 P.Cr.L.J. 1368 and another Division Bench judgment in Qalandaro’s case reported in 1997 MLD 1632.”
14. It is true that it may not be necessary in every case that Roznamcha entry be produced in the Court, but here the case is of a different nature. It is a case where firstly it is stated that the offence subject-matter of the proceedings in the Court below was admitted during interrogation while the accused person was in custody and the police officer left the police station for the specific purpose of affecting recovery on pointation of the accused person. In such like cases it is essential that every brick of the wall of prosecution be proved to the last grain of sand required to put it in the place. Therefore, non-production of Roznamcha entry would be a very material element which will throw doubt on the story of the prosecution. On the other hand, if the case had been that police party had gone on patrol and while patrolling they apprehended an accused person and if Roznamcha entry is not produced, such non-production may not be fatal to the case of prosecution, but where the police party specifically goes for affecting recovery and for no other purpose, they must prove every element including production of the Roznamcha entry.
15. There are many minor contradictions, such as complainant stated that he called the mashir from his village, whereas mashir stated that he was present at the spot when the police reached there. In the F.I.R. there is no statement regarding sealing of the recovered items. Although the complainant stated that the pistol was sent to the Ballistics Expert but there is no report of the Ballistics Expert and lastly complainant stated that the pistol was recovered from the bushes and mashir states that they were recovered from a bunch of Babol Trees. Each one of these contradictions may not be sufficient to dislodge the case of prosecution but when all the contradictions are taken together, they may in circumstances become a straw too much for the proverbial camel’s back.
15. Mashir in this case was an interested person. He is related to the complainant. Not only that, he has been mashir against the same applicant in respect of seeing of the dead body as well as in respect of arrest of the applicant. Mashir is not resident of place close by to the place of recovery. Complainant has stated that he called the mashir. Mashir has stated that he was present there. Why was he present there is not stated by the mashir. All these create doubt. The Supreme Court of Pakistan in Ghulam Qadir v. The State, 2008 SCMR 1221, has laid down the low in the following words:-
“16. It needs no reiteration that for the purpose of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge-makers the whole case doubtful.”
16. Both the Courts below have not discussed these aspects. They have merely stated, in the words of the trial Court, as “there are some minor contradictions in the statements of P.Ws which always happen due to passage of time, and in presence of said minor contradictions it does not mean that other supporting, corroborative evidence of prosecution witnesses is unreliable” and in the words of the appellate Court “there are no material contradictions in the statements of the complainant and mashir, of-course minor contradictions are there but same would not be sufficient to hold the appellant/accused as innocent.” Both the Courts below have not even stated what are those minor contradictions. In my opinion there are serious doubts around the story of prosecution. I, therefore, while giving benefit of doubt, to the present applicant, accept this revision application, set aside the impugned judgments dated 11.8.2009 passed by the trial Court and dated 18.1.2010 passed by the appellate Court and acquit the applicant. He is ordered to be released, if not required in any other case.
JUDGE