2018 PLP 164 (YLRN)

SYED MUHAMMAD FAROOQ SHAH, J.

Captioned appeals are directed against the impugned judgment dated 10.03.2016, passed in Sessions Case No. 171/2014, thereby the appellant has prayed to allow the appeal and to acquit him on the facts and legal grounds averred in the memo of appeal.

2. It is an admitted position that the appellant has been acquitted in connected/ ofshot case i.e. Sessions Case No. 168/2014, for an offence punishable under section 23-A(i) of Sindh Arms Act, 2013, crime No. 448/2014 registered at Police Station Sir Syed vide judgment dated 21.09.2014; copy of judgment is available at page-119 of instant memo of appeal. Record reflects that under common memo of recovery and arrest, two cases were registered against the appellant. Learned counsel for the appellants submits that the appellant has been acquitted in connected case of alleged possessing of unlicensed weapon, on the same set of evidence and convicted in this case punishable under Sections 392, 353, 324, 34, P.P.C. Learned Advocate for the appellant argued that in the said acquittal judgment, the trial court disbelieved and discarded the recovery of incriminating case properly i.e. weapon from the appellant; more particularly, reasons in shape of points Nos. 1 and 2 of the said judgment transpire that the trial court with sound and cogent reasons observed that the evidence brought on record by the prosecution cannot be relied upon, safely. Learned counsel next submits that state has not preferred any appeal against the acquittal of appellant in the case of recovery of incriminating property i.e. unlicensed weapon.

3. A perusal of prosecution story narrated in Crime No. 447/2013, for an offence punishable under sections 392/ 353/324/34, P.P.C. reflects that on 07.12.2013 complainant Muhammad Imran present outside his shop Abdullah Oil Depot situated at Shop No. 3, Sector 11-A, North Karachi. At 1330 hours two persons came to him while possessing deadly weapons pointed upon him and they snatched cash Rs. 4500/-, ATM card of Meezan Bank, one cheque of Meezan Bank and some important bills and the documents of motorcycle No. KGW-6893 and tried to fled away by snatching the said motorcycle. Complainant made hue and cries on which one accused made three fires upon him with intention to kill him, during this, police mobile arrived there and on seeing policy party, the accused started firing upon police party with intention to kill them. General public gathered there, captured the appellant and his companion made his escape good. On inquiry, accused disclosed his name to be the appellant abovenamed and from his personal search unlicensed weapon, loaded with two bullets, was secured. At the trial, the prosecution examined all the material witnesses beside, statement of accused under section 342, Cr.P.C. was also recorded and on completion of full dressed trial, the recoveries were held to be doubtful.

4. Arguments heard. Record perused.

5. Learned counsel for the appellant submits that this case has been foisted upon the accused person by the police officials just to show their efficiency. Learned counsel next submits that on the same set of evidence, the appellant has been acquitted in connected case with regard to recovery of unlicensed pistol and that the evidence adduced in the instant appeal is shaky, not inspiring confidence and without any independent corroboration; that there are material contradictions and improvements therefore, in such view of the matter, the conviction awarded to the appellants is not sustainable under the law and justice. Learned Counsel next argued that the learned trial court has seriously erred not to give any findings in its judgment, impugned herein, whereby the appellant has been convicted. Learned Counsel further argued that if at all the looted cash was 4500/- as mentioned in the FIR but in the memo of recovery and charge sheet submitted under Section 173, Cr.P.C., the snatched amount was shown to be Rs. 45000/-. Learned Counsel next submits that in the memo of recovery it was mentioned that motorcycle bearing No. KGW-6894 was secured from the possession of appellant but in the FIR and charge sheet it was mentioned as KGW-6893. Learned Counsel next argued that, in his deposition, PW1 ASI Muneer Ahmed, stated that the place of incident is a busy place where there remains hustle and bustle of public but he did not make effort to associate other independent witness from the locality. Learned Counsel lastly argued that there is nine days delay in sending the parcel containing incriminating weapon for FSL report with no explanation whatsoever.

6. Conversely, learned DPG supported the judgment passed in this case but she is not found able to controvert the judgment passed in connected case i.e. alleged recovery of illicit weapon.

7. It needs to be iterated that in the case of recovery of arm, where the judgment of court leans upon the testimony of police officials, it is necessary to find out that there was any possibility of securing independent person at the time of recovery as in view of contradictory statement of prosecution witnesses and report of Forensic Expert as mentioned supra, the credibility of the prosecution witnesses is to be weighed in accordance with law as it is settled principle of law that judicial approach has to be cautious in dealing such type of evidence of police officials.

8. A perusal of impugned judgment reveals that learned trial court acted in oblivion of principles of appreciation of evidence in criminal trial to evaluate it and discover the probabilities with regard to the conviction of the accused. Suffice is to say that from material on record, the version of prosecution without corroboration adversely affects the credibility of prosecution witnesses testimony. It needs not to be reiterated that keeping in view the judicial wisdom, experience and while balancing the judicial conscious, justice should be dispensed with according to the law and not to the whims and caprice or subjective standard of trial Judge in the overall context. The depositions of prosecution witnesses are totally inconsistent; moreso, the appellant has been acquitted in connected case on the same set of evidence but convicted in the off shoot cases punishable under section 392, P.P.C. and admittedly state has not preferred any appeal against the acquittal of appellant in the connected case crime No. 448/2013. There are so many circumstances, discussed above creating serious doubts in the prosecution case which go to the roots of the prosecution case and according to golden principle of benefit of doubt one substantial doubt would be enough for acquittal of the accused. The rule of benefit of doubt is essentially a rule of prudence, which cannot be ignored while dispensing justice in accordance with law. Conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case, must be resolved in favour of the accused. The said rule is based on the maxim "it is better that ten guilty persons be acquitted rather than one innocent person be convicted" which occupied a pivotal place in the Islamic Law and is enforced strictly in view of the saying of the Holy Prophet (PBUH) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent".

9. It is not out of context to mention here that the concept of benefit of doubt to an accused person is deep rooted in our country. The prosecution was duty bound to prove its case beyond the shadow of reasonable doubt and if any single or slightest doubt is created, benefit of same must go to the accused and it would be sufficient to disbelieve the prosecution story. It is settled law that benefit of doubt would go to the accused, regardless of fact whether he had taken such plea or not. If need arises, reliance may conveniently be placed on the case of Tariq Pervaiz v. The State 1995 SCMR 1345; Muhammad Akram's case 2009 SCMR 230 and Faryad Ali case 2008 SCMR 1086. Keeping in view the aforestated peculiar facts and circumstances, which creates reasonable doubts in a prudent mind about the guilt of the accused, I reached at the irresistible conclusion that it is a fit case in which the accused is entitled to the benefit of doubt not as a matter of grace but as a matter of right, therefore, there being no satisfactory basis for upholding the conviction and sentence of the appellant.

10. For the foregoing reasons, the conviction and sentence awarded to the appellants/accused was set aside by a short order dated 21.04.2017, reproduced hereinbelow:-- "Heard arguments. For the reasons to be recorded Later on, the captioned appeals are allowed. Appellant is acquitted from the charge of this case. He is in custody being convicted prisoner. The Superintendent, Central Prison, Karachi, is directed to release the appellant in this case forthwith, if he is not required in any other case". JK/M-166/Sindh Order accordingly.