2009 PLP 976 (MLD)

MUHAMMAD IQBAL MEHAR, J.

Through this Criminal Revision Application the applicant/accused has challenged the judgment, dated 17th July, 2008 passed by the learned IInd Additional Sessions Judge, Thatta in Criminal Appeal No.5 of 2008 maintaining the conviction and sentence of 2 years and fine of Rs.5000 awarded by Civil Judge and Judicial Magistrate Mirpur Sakro at Gharo vide judgment, dated 25-4-2008. Precisely, the prosecution case is that on 6-9-2007 complainant A.S.-I. Muhammad Younus Incharge Check Post Dhabeji along with his subordinate staff as per instruction of his superior started checking of vehicle. At about 1800 hours one passenger bus came from Karachi which was stopped by the complainant party at Check Post Dhabeji. The complainant party went towards bus for checking the passenger but one person having plastic Thalli immediately got down from the roof of bus and started running towards West. The police party suspecting him followed and apprehended him. They took plastic Thalli in their possession and found one TT Pistol loaded with four bullets wrapped in shirt and trouser lying in that plastic Thalli. From personal search of the accused one NIC in the name of applicant/accused and rupees one hundred were recovered. On enquiry he disclosed his name as Muhammad Riaz. The complainant prepared Mashirnama of arrest and recovery in presence of Police Constable Abdul Qadir and Police Constable Kajaldin and brought the accused and property at Police Station Dhabeji, where he registered the F.I.R. and after completing investigation submitted challan in the Court of learned Civil Judge and Judicial Magistrate Mirpur Sakro at Gharo. The Police papers were supplied to the applicant/accused, charge was framed but he denied the charge and claimed trial of the case. The prosecution in order to prove its case examined complainant A.S.-I. Muhammad Younus, who produced mashirnama of arrest and recovery, F.I.R. and copy of arrival entry, Police Constable Abdul Qadir, the mashir of arrest and recovery. Thereafter the prosecution closed its side. The statement of accused was recorded under sections 342 and 340(2), Cr.P.C. and on the basis of evidence the trial Court convicted the applicant/accused as above. The applicant/accused challenged the said judgment by preferring appeal but learned IInd Additional Sessions Judge Thatha maintained the conviction awarded by the trial Court. The learned counsel for the applicant/accused contended that there are material contradictions in between the deposition of prosecution of witnesses which have not been considered by both the Courts below. The police party had started checking of vehicle as per instructions of their superior but they did not join private person in recovery proceedings. He further contended that neither the alleged property was sealed at place of Wardat and nor the same was sent to Ballistic Expert for its verification therefore he prayed for setting aside impugned judgment passed by both the Courts below. In support of his argument he relied upon 1995 SCMR 1345, 1998 PCr.LJ 1399, 1999 PCr.LJ 595 and 1986 SCMR

46. On the other hand learned counsel appearing for the State supported the judgment but on enquiry confirmed that the property was neither sealed and nor sent to Ballistic Expert. I have carefully considered the submission made by the learned counsel for the parties and have gone through the R.P. as well as case-law relied upon by the learned counsel for the applicant/ accused. The case of prosecution is that A.S.-I. Muhammad Younus was Incharge at Police Check Post Dhabeji, he recovered pistol from application/accused and took accused and case property to Police Station where he acted as complainant, registered F.I.R. himself and after completing investigation submitted challan of the case. This clearly shows his interest in prosecution case otherwise he had to give information of the offence to S.H.O. or Incharge of Police Station who was duty bound to incorporate the statement of complainant into 154 Cr.P.C. book and to investigate the case but this has not been done in this case. Both the Mashirs of recovery are of same Police Check Post and subordinate of the complainant and none from the passengers of the bus was associated to witness the recovery from applicant/accused. It is also matter of record that neither the case property was sealed at Wardat or at Police Station and nor the same was sent to Ballistic Expert for its report. Apart from these informations there are material contradictions in between deposition of prosecution witnesses with regard to the place of arrest, manner of arrest and personal search of applicant/accused. The learned Division Bench of this Court in case Sajan v. The State reported in 1998 PCr.LJ P.1399 has held as under:-- "Weapon allegedly recovered from possession of accused in consequence of search, neither was sealed in presence of Mashir nor was sent to Ballistic Expert for certification to the effect that same was functional or otherwise. Such weapon, even (luring trial, neither was described nor its details were given and evidence to the extent that weapon lying in the Court was the same had come on record. Such a situation had rendered case against accused to be doubtful. Investigating Officer who was S.H.O. of Police Station concerned, had acted as a prosecutor, investigator and a witness in respect of the proceedings against the accused. Prosecution evidence being not sufficient to sustain conviction of accused, conviction and sentence awarded to accused, were set aside and accused was acquitted of the charge." The same view has been taken in Division Bench of this Court in Long v. The State reported in 1999 PCr.LJ

595. The above circumstances, create doubt as to the truthfulness of witnesses of the prosecution case. It is settled law that the benefit of doubt always goes to accused and it is not .necessary that there must be multiple circumstances to create doubt. Even a single circumstances, entitles him to such benefit. In case of Tariq v. The State reported in 1995 SCMR 1345 while setting aside the conviction and sentence of appellant therein, it has been observed that for giving benefit of doubt to an accused, it is not necessary that there should be many circumstances, creating doubt. If a single circumstance creates reasonable doubt in prudent mind about the guilt of accused then he will be entitled to such benefit not as a matter of grace but as a matter of right. In view of above discussion I am of the view that conviction recorded in the above case cannot be sustained. Resultantly, the Criminal Revision Application No.75. of 2008 is accepted and both the impugned judgments are set aside and applicant/accused is acquitted from the charge. He is present on bail his bail bond is cancelled, and surety c discharged. H.B.T./M-88/K Application accepted.