2020 P Cr (PLP)

MUHAMMAD SALEEM JESSAR, J.

Through this Criminal Appeal appellant Sikandar Ali has assailed judgment dated 26.02.2019 handed down by learned 1st Additional Sessions Judge, Kotri in Sessions Case No.12 of 2019 (re: The State v. Sikandar Ali) being outcome of FIR No.462/2018 registered at P.S. SITE Kotri, whereby appellant has been convicted for offence punishable under section 23(I)(a), Sindh Arms Act, 2013 and sentenced to suffer R.I. for five (5) years and to pay fine of Rs.10,000/- (Rupees Ten thousand only) and in default to suffer S.I. for one month more. However, the accused was extended benefit of section 382-B, Cr.P.C.

2. Concisely, the facts of the prosecution case are that complainant ASI Barkat Ali Qambrani lodged aforesaid FIR at P.S SITE Kotri, stating therein that on 11.12.2018 he, along with ASI Ahmed Ali Solangi, PC Abdul Rasheed, PC Kashif Ali, PC Waheed Ali, DPC Aijaz Ali left CIA Jamshoro with ammunition and investigation kit vide entry No.14 at 1830 hours in government vehicle No.SPM-878 for patrolling and checking in SITE area Kotri. After conducting patrolling at different places, they halted at Awami Chowk, Mill Area, Kotri and started checking big vehicles. During checking at 2130 hours they saw one person coming by foot from Colgate Mill side. The said person on seeing the police party, attempted to flee towards western side, but he was apprehended tactfully. The body search of the apprehended person was conducted and from right fold of his shalwar, one .30 bore pistol was recovered. On checking the said pistol was found containing three live bullets in its magazine. From further physical search, seven currency notes of Rs.100/- denomination and six currency notes of Rs.50/-were recovered. On inquiry, the apprehended person disclosed his name as Sikandar son of Shandad, by caste Sondhro, resident of village Shaji Shandad Sondhro, Taluka Thul, District Jacobabad. On demand, he could not produce any license for the recovered pistol. The pistol and bullets were sealed on the spot for FSL. Finding no private mashir, such mashirnama was prepared under signatures of ASI Ahmed Ali Solangi and PC Abdul Rasheed. The case property and accused were brought at CIA Jamshoro, where accused Sikandar Ali was kept in lockup and his criminal record was called from District Jacobabad. From the record, it transpired that accused Sikandar was fugitive in Crime No.78/2012 under section 302, P.P.C. of P.S A-Section, Thul and Crime No.08/2014 under sections 324 and 353, P.P.C. registered at P.S B-Section, Thul. On inquiry, the accused Sikandar also admitted his involvement in criminal cases of Jacobabad District hence the complainant lodged FIR under section 23-A, Sindh Arms Act, 2013 in the instant case.

3. After completing, usual investigation, charge sheet was submitted against the accused before learned Ist Civil Judge and J.M Kotri, who after necessary proceedings, sent the R & Ps to the Court of Sessions Judge Jamshoro, who entrusted the case to the trial court for proceeding and disposal according to law.

4. A formal Charge was framed against accused Sikandar Ali vide Ex.02, to which he pleaded not guilty and claimed for trial, vide his Plea Ex.02/A.

5. In order to prove its case. prosecution examined complainant ASI Barkat Ali at Ex.03, who produced entry No.14 of CIA Jamshoro, mashirnama of arrest and recovery, entry No.17, FIR No.462/2018 of P.S SITE Kotri, malkhana entry No.52, W.T. message, letter addressed to In-charge FSL. FSL report as Ex.3/A to 3/H respectively P.W-02 ASI Ahmed Ali Solangi, the mashir of arrest and recovery, was examined at Ex.04. Thereafter, learned ADPP for the State closed prosecution side vide his Statement Ex.05.

6. Statement of accused under section 342, Cr.P.C. was recorded vide Ex.06, wherein he denied the allegations of prosecution and claimed himself to be innocent and prayed for justice. The accused wished to be examined on oath as provided under section 340(2), Cr.P.C. and lead defense evidence. Accordingly, he was examined on oath vide Ex.7 and his witnesses namely. Imam Bux, Qurban Khoso and Shahal Khan were examined vide Exs.8, 9 and 10 respectively.

7. After formulating the points for determination, recording evidence of prosecution witnesses and hearing counsel for the parties, learned trial Court vide impugned judgment convicted and sentenced the accused/appellant, as stated above. Against the said judgment instant appeal has been preferred by the convicted accused.

8. I have heard learned counsel for the parties and perused the material available on the record.

9. Mr. Abid Hussain Qadri, learned counsel for appellant, submitted that CIA Police had allegedly recovered a .30-Bore pistol from the possession of appellant and subsequently investigated the case themselves. According to him, CIA police was not competent to investigate the case of recognizable offence and by doing so they have committed illegality/irregularity. In support of this argument he placed reliance upon the case of State through Advocate-General, Sindh v. Bashir and others (PLD 1997 Supreme Court 408). As far as merits of the case is concerned, he argued that in the charge sheet/challan dated 24.12.2018, it is mentioned that I.O. had visited the place of incident; however, no such document/memo of incident had ever been adduced in evidence or was exhibited. He further submitted that per evidence of complainant, who is also I.O. of the case, the recovered pistol was kept by him in Malkhana under entry No.52: however, his said version has been belied by P.W Ahmed Ali, who deposed that recovered case property was kept in Malkhana under the custody of WHC. He pointed out that parcel containing the cash amount allegedly recovered from the possession of appellant was not sealed; besides, P.W Ahmed Ali deposed that they did not sign the envelope of cash amount. He further submitted that property allegedly kept under the custody of WHC of the police station concerned, has not been justified by the prosecution. Said WHC was not examined before the trial Court, which may substantiate the case of prosecution. He further submitted that appellant is a retired government servant and has been residing at Kotri due to education of his children; besides, he is also an ailing person. In fact, according to learned counsel, CIA Police had raided house of the accused and made demand of illegal gratification of huge amount from him, however, he could not grease their palms hence the CIA Police took summersault and implicated him in this false case by foisting alleged weapon. He next submitted that though the appellant examined himself before the trial Court in terms of section 340(2), Cr.P.C. and produced some witnesses in his defence, who all had deposed to the extent that nothing was recovered from his possession, meaning thereby no crime weapon was recovered from him at the time of his arrest, but subsequently the weapon was shown to have been recovered from the possession of the accused by showing a fake place of incident. He also submitted that mere absconsion of the accused in other criminal case(s) does not permit the police to implicate him in another fake case; at the most they can make his arrest only in the case in which he was wanted or required to be arrested. He next submitted that alleged weapon was sent to Ballistic Expert after a delay of two days, which is also fatal to the prosecution case and prosecution itself has failed to prove its case against him. He lastly submitted that in view of above, doubts have been created in prosecution case benefit whereof may be extended to the appellant and he may be acquitted of the charge. In support of his contention he placed reliance upon the case of Tariq Pervez v. The State (1995 SCMR 1345).

10. Learned A.P.G appearing for the State opposed the appeal and submitted that appellant was found in possession of the weapon which is unlicensed and no enmity or animosity has been alleged against the police for implicating him falsely in this case. She further submitted that the accused was absconder in other criminal cases, therefore, in order to exert pressure on CIA Police, he has alleged that he was robbed of Rs.40,000/- for which no substantive proof has been brought on record. She, however, could not satisfy the Court as to whether CIA Police was competent to investigate a cognizable offence.

11. In the first instance, I would like to deal with the legal objection raised by learned counsel for the appellant that CIA police was not competent to investigate the case concerning a cognizable offence This point had been elaborately discussed by a Bench of four Honourable Judges of Supreme Court of Pakistan in the case of State v. Bashir and others reported in PLD 1997 Supreme Court

408. It would be advantageous to reproduce hereunder the relevant observations from the said judgment: "

13. Adverting to the last submission, namely, that C.I.A. personnel have no power under section 156(1) of Cr.P.C. to investigate any cognizable offence and to submit a challan in respect thereof and, therefore, the entire trial vitiated on account of coram non judice. It may be observed that under subsection (1) of section 156, Cr.P.C. the power to investigate a cognizable offence under the above provision has been conferred on any officer incharge of the Police Station having jurisdiction over the local area within the limits of such Police Station, whereas clause (p) of section 4, Cr.P.C. defines "officer incharge" of a police station as under:- "(p) 'officer-in-charge of a police-station' includes when the officer-in- charge of the police station is absent from the station house or unable from illness or other cause to perform his duties, the police officer present at the station house who is next in rank to such officer and is above the rank of constable or when the Provincial Government so directs, any other police officer so present:" A perusal of the above provision indicates that only an officer in-charge of the police station having jurisdiction over the local area within the limits of a police station can investigate a cognizable offence or any other person covered by the definition of the officer-in-charge of a police station given in above clause (p) of section 4, Cr.P.C. which in the absence of officer incharge of a police station includes officer-in-charge present at the station house who is next to the officer incharge of the police station and is above the rank of the constable or when the Provincial Government so directs, any other police officer so present. The above provision does not include C.I.A. personnel, therefore, they have no power to investigate a cognizable offence."

12. It was further held in the said reported case that; "

15. However, Mr. Allah Bux. A.I.G. Legal has submitted that since for the last several decades the C.I.A. personnel have been taking cognizance of cognizable offences, investigating the same and submitting the challans in respect thereof inasmuch as even a Special C.I.A. Court was established at Karachi for trial, the same constitutes according of recognition by the Courts to the C.I.A.'s power to take cognizance of cognizable offences to investigate and to submit challans to the Court concerned. The above submission seems to be fallacious. Any alleged illegal practice cannot negate an express provision of a statute. It is unfortunate that a Government functionary which is entrusted with the enforcement of law should be guilty of breach of a provision of law. It is high time that efforts should be made to establish the supremacy of law instead of relying upon an illegal practice."

13. Another significant point is that the complainant, who also conducted investigation of the case, in his cross-examination admitted, "It is correct that place of arrest of accused is populated area. It is incorrect to say that I did not ask any private person to became a mashir. Voluntarily says I asked the people but they refused. I do not know the name of any person because they were coming and going from a road." It seems that the complainant/I.O. did not associate any private person of the locality to act as mashir of arrest and recovery. Although he has tried to justify such fault on his part by saying that although he asked the people to act as mashir but they refused; however, he simultaneously admitted that he does not know name of any such person who refused to act as mashir. Needless to observe that the complainant/I.O. of the case while effecting arrest of the accused and recovery of the weapon, was not supposed to only fulfill a formality by merely asking private persons present at the spot to act as mashir but he should have utilized his powers bestowed upon him under the law by issuing notice under section 160, Cr.P.C. to such person which was not done by him. Besides, the complainant although stated that he asked the persons available at the spot to act as mashir but they refused, however, admittedly he did not take any action under section 187, P.P.C. against such person for not providing assistance to the complainant, who was a public servant and was performing his official duty.

14. Needless to emphasize that in view of provisions of section 103, Cr.P.C. the officials making searches, recoveries and arrests, are reasonably required to associate private persons, more particularly in those cases in which presence of private persons is admitted so as to lend credence to such actions, and to restore public confidence. This aspect of the matter must not be lost sight of indiscriminately and without exception. In the case reported as State v. Bashir and others (supra) Honourable Supreme Court held as under: "As regards above second submission of Mr. M. M. Aqil, it may be observed that it has been repeatedly held that the requirements of section 103, Cr.P.C. namely, that two Members of the public of the locality should be Mashirs of the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public."

15. In the case of Mushtaq Ahmed v. The State reported in PLD 1996 SC 574, Honourable Supreme Court held as under: "(v) That likewise there is a marked distinction between a case in which the offence charged with is the recovery of the article itself like recovery of an unlicensed Kalashnikov and a case in which the article recovered e.g. a crime weapon is to be used as a corroborative piece of evidence. In the former case if the witnesses to the recovery were police personnel though it was possible to have two Mashirs from the locality where recovery was made, their testimony in the absence of other reliable pieces of evidence would not warrant conviction, whereas in the latter case, if other pieces of evidence on record are free from doubt, the testimony of the police personnel if otherwise free from any legal infirmity may be accepted."

16. Yet in another case reported as Yameen Kumhar v. The State (PLD 1990 Karachi 275) this Court after discussing various case-laws on this point held as under: "A perusal of the afore-stated authorities and a catena of judgments of various High Courts which we have not quoted here clearly lay down that section 103, Cr.P.C. is to be applied to recovery, search and arrest made during investigation of a crime. It has been termed as mandatory but not absolute and its non-compliance in certain circumstances will not render search and recovery illegal. However, where during investigation of a crime recovery is made from any inhabited locality compliance with section 103 must be made. It cannot be ignored or brushed aside on the whims and caprices of the Investigating Officer except on well-founded grounds and in exceptional cases. If recovery has been made in contravention of section 103, it is the duty of the prosecution to explain it and give valid and reasonable explanation for such digression. Recovery is an important piece of evidence which is to be proved by disinterested, independent and respectable witnesses. Such witnesses should be of the locality if the circumstances of the case permit. Section 103 embodies rule of prudence and justice. It is intended to eliminate and guard against 'chicanery' and 'concoction', to minimize manipulation and false implication. It is for these reasons that there is a consensus in the Superior Courts that compliance with section 103 should not be bypassed nor that its applicability be restricted to proceedings under Chapter VII only. The principles of section 103 have been applied and practiced during investigation in crimes for so long and with such regularity and force that any attempt to restrict it to proceedings under Chapter VII only will unsettle the settled law. The provisions of Chapter VII make it clear that they relate to the search of any place but it cannot be restricted only to house or a closed place, it can be an open place, open area, a. playground, field or garden from where recovery can be nude for which search is conducted. Although in strict sense the provisions of section 103 are restricted to searches under Chapter VII of Cr.P.C. it has become a practice to apply it to all recoveries made by the Police Officers while investigating any crime. The rules of justice enunciated by section 103 are so embedded in our criminal jurisprudence and so universally accepted that in all criminal cases two mashirs are always cited for recovery and reliance is placed on these witnesses in the ordinary course provided they are independent, respectable and inhabitants of the locality. The residence of the mashirs becomes relevant depending on the facts of the case. The emphasis should be on respectability."

17. In view of aforesaid factual and legal position, recovery of the alleged crime weapons along with live bullets from the accused has lost its evidentiary value.

18. Another discrepancy/legal flaw in the prosecution case is that although the complainant/Investigating Officer of the case namely ASI Barkat Ali in his deposition admitted that 30 bore T.T. Pistol along with live bullets was allegedly recovered from the possession of the accused on 11.12.2018; however, the said weapon was sent to Forensic Science Laboratory on 13.12.2018 i.e. after two days of its alleged recovery. Although the complainant has tried to justify such delay by deposing, "I kept the recovered case property in malkhana vide entry No.52 on the same day", however, according to P.W. AS1 Ahmed Ali, "The recovered case property was kept in malkhana under the custody of WHC." However, the said WHC or, for that matter, any other responsible official posted at Malakhana on the relevant date and time, has not been examined by the prosecution before the trial Court 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) wherein it was held as under: "

12. More significantly there was no evidence that the recovered narcotics were kept in safe custody between 10th and 11th May, 2007 when the recovered narcotics were taken by ED Allah Warayo to the chemical examiner. No malkhana entry was produced, the keeper of the malkhana was not examined nor was ED Allah Warayo concerning the safe custody and safe transit of the chemical which could have been interfered with after its recovery and thus the chemical report cannot in our view be safely relied upon. In this respect reliance is placed on the case of Ikramullah and others v. The State (2015 SCMR 1002)..."

19. Now, the deposit of the weapon in the malkhana/safe custody, as alleged by the complainant/I.O. having become doubtful, no other plausible explanation has come forward from prosecution side for the delay in sending the weapon to FSL with a delay of two days, which creates doubt in the veracity and credibility of such recovery, so also the report of the ballistic expert. In the case reported as Samandar alias Qurban and others v. The State reported in 2017 MLD 539 Karachi, while dealing with the point of delay in sending the weapon to Ballistic Expert, this Court held as under: "Apart from above sending of crime weapon to ballistic expert for forensic report with delay of 20 days of their recovery also added further doubt into the prosecution case, thus in view of above coupled with non-compliance of section 103, Cr.P.C., it can safely be presumed that alleged recovery of crime weapon was not made from the possession of the appellants as alleged by the prosecution."

20. In the case reported as Yaqoob Shah v. The State (1995 SCMR 1293) honourable Supreme Court held that the report of the Fire-Arm Expert was of no avail to the prosecution as the crime empties and the fire-arms allegedly recovered from the accused were sent to Forensic Science Laboratory after delay. Reference in this respect may also be made to the decision reported as Ghulam Hussain and two others v. State (1998 PCr.LJ 779). In the circumstances, report of the ballistic expert, even might be in positive, would lose its sanctity.

21. It is also now well settled that the prosecution is bound under the law 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 reported as Wazir Mohammad v. The State (1992 SCMR 1134) it was held by honourable Supreme Court as under: "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."

22. In another case reported as Shamoon alias Shamma v. The State (1995 SCMR 1377) it was held by honourable Supreme Court as under: "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defencc. 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."

23. The accumulative effect of the abovesaid infirmities and legal flaws in the prosecution case is that the prosecution has not succeeded in discharging its obligation to prove the case beyond shadow of reasonable doubt. Needless to emphasize the well settled principle of law that the accused is entitled to be extended benefit of doubt as a matter of right. In the present case, there are many circumstances which create doubts in the prosecution case. Even an accused cannot be deprived of benefit of doubt merely because there is only one circumstance which creates doubt in the prosecution story. In the case reported as Tariq Pervaiz v. The State 1995 SCMR 1345 the honourable Supreme Court held as under:- "The concept of benefit of doubt to an accused is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. 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."

24. For the foregoing reasons by a short order passed on 28.10.2019, instant appeal was allowed. Consequently, impugned judgment dated 26.02.2019 handed down by learned Ist Additional Sessions Judge, Kotri in Sessions Case No.12 of 2019 (re: The State v. Sikandar Ali) being outcome of FIR No.462/2018 registered at P.S. SITE Kotri, under section 23(I)(a), Sindh Arms Act, 2013 was set aside and appellant Sikandar Ali was acquitted of all the charges and was ordered to be released forthwith in the instant case only, if his custody was not required in any other criminal case. Above are the reasons for the said short order. JK/S-8/Sindh Appeal allowed.