2017 PLP 135 (YLRN)

RASHEED AHMED SOOMRO, J.

The appellant Arsalan son of Muhammad Iqbal has challenged the judgment dated 07.04.2016, passed by learned IInd Additional Sessions Judge, Karachi Central, through which, charge of having been found in possession of 30 bore pistol along with magazine containing 04 live bullets, stood proved at trial and the appellant found guilty, was convicted under section 265-H(ii) Cr.P.C., and sentenced to suffer RI for 05 years and fine of Rs.10,000/-, in default thereof, to further undergo for further SI 02 months. The sentence will run concurrently with the benefit of Section 382-B Cr.P.C.

2. Brief facts of prosecution case as narrated in FIR are that on 21.06.2014 at 1805 hours, behind Askari Imam Bargah, Block-9, F.B. Area, Karachi, the appellant was arrested by police of Police Station Joharabad headed by ASI Wajid Ali and one unlicensed pistol of 30 bore, without number, along with magazine containing four live rounds and cash of Rs.180/- were recovered from his possession in presence of mashirs and then he along with case property were brought at Police Station where the FIR was lodged against the appellant.

3. The trial commenced with provision of copies Police papers and framing of formal charge upon the appellant and prosecution in order to prove its case, examined three witness i.e., PW-1 SIP Rashid Hussain as Ex.3, PW-2 ASI Wajid Ali Khan/complainant as Ex.4 and PW-3 PC Fahim Ahmed as Ex.5, respectively.

4. After recording evidence of prosecution witnesses, the learned trial court examined appellant under section 342, Cr.P.C. wherein he denied the allegations leveled by prosecution and claimed to have been falsely implicated. However, he neither opted to be examined under section 340(2), Cr.P.C. nor led evidence in defence.

5. On conclusion of trial, the appellant having been found guilty, was convicted and sentenced by learned trial court, as stated hereinabove.

6. Mr. Muhammad Javed, learned counsel for appellant, inter alia contended that appellant is innocent and has been falsely implicated in this case by the police. He next contended that there were two FIRs, i.e., one FIR No.221/2014, under sections 381-A/ 411/34, P.P.C. of Police Station Nazimabad and other is instant FIR under section 23(i)A of Sindh Arms Act of Police Station, Joharabad, based upon same evidence, material and set of witnesses. He further argued that appellant has been acquitted in case under FIR No.221/14 of Police Station Nazimabad while he has been convicted in instant FIR hence findings of learned trial court require interference of this court. He also contended that appellant being poor person could not arrange a counsel for conducting his case as such he was at mercy of prosecution thus unable to highlight contradictions in statements of PWs. He also argued that the FIR has been unauthorizedly lodged by an ASI in sheer violation of section 34(b) of Sindh Arms Act, hence it is not sustainable in law. The alleged recovery of pistol and bullets has also been effected in violation of section 103, Cr.P.C. as well as Section 34 of Sindh Arms Act. Lastly, he argued that impugned judgment is based on misappropriation of facts, therefore, having no value in the eyes of law, is liable to be set aside.

7. Learned DPG has supported the judgment passed by the learned trial Court.

8. I have heard arguments of learned counsel for appellant as well as learned DPG and perused the relevant record.

9. Complainant ASI Wajid Ali Khan deposed that on 21.06.2014, he along with PC Fahim, PC Khalid Usmani and DPC Muhammad Zaman left PS in mobile vide daily diary entry No.4 for patrolling. On reaching at Askari Imam Bargah, Block-9, F.B. Area, two persons riding on motorcycle were spotted who were signaled to stop but they attempted escape. However, the motorcycle skidded and both riders fell on road. One of them made his escape good in the streets while other person i.e. appellant was apprehended. On his personal search, one 30 bore pistol loaded magazine containing four (04) rounds was recovered from left side of his pent for which he could not produce license. The recovered pistol and ammunition were sealed at spot. He further deposed that appellant also failed to produce documents of motorcycle and on inquiry disclosed that same was snatched from jurisdiction of Police Station Nazimabad on spot which he produced as Ex.4-B. The complainant, however, remained silent regarding recovery of cash Rs.180/- from possession of appellant at the time of his arrest.

10. Mushir PC Fahim Ahmed in his evidence has deposed that on 21.06.2014 he along with ASI Wajid Ali and others, left PS for patrolling. During patrolling when they reached at Askari Imam Bargah, F.B. Area, they saw two persons in suspicious condition on motorcycle. Despite signaled to stop but they tried to escape, nevertheless, the motorcycle slid and they fell down. One of them fled in streets while the appellant was apprehended. From personal search one unlicensed TT pistol from left side pocket of his pent along with four (04) live bullets was recovered. Accused also failed to produce documents of motorcycle. He further deposed that on further search, cash Rs.180/- was also recovered from his possession. Thereafter complainant prepared such memo in his presence. Mushir PC Fahim Ahmed in his cross-examination admitted that Rs.180/- were also recovered from possession of appellant.

11. PW-3 SIP Rashid Hussain in his evidence deposed that on 21.06.2014, he received police papers, arrested accused and case property for investigation. He inspected place of incident on pointation of complainant and prepared such memo in presence of mushirs. He also recorded statement of PWs under section 161, Cr.P.C. The TT pistol was sent to laboratory for examination and report. In his cross-examination, he admitted that both mushirs of place of incident are police officials and the place of incident is not thickly populated area. He tried to take private persons from place of incident but none volunteered. He further admitted that he simply investigated the case and the FIRs Ex.3-A and 3-C were not bearing signatures of SHO. He also admitted that pistol was sent for examination on 23.06.2014.

12. From perusal of cross-examination of I.O., SI Rashid Hussain it appears that private witnesses were available at spot but nobody was ready to act as mashir. Mushir PC Fahim Ahmed in his cross-examination admitted that cash Rs.180/- was also recovered from the possession of appellant. Record further reveals that place of incident was situated near Askari Imam Bargah, F.B.Area and weapon was recovered from possession of accused at 1805 hours but nobody was cited as mushir of arrest and recovery. Record further reveals that Mushir PC Fahim Ahmed deposed about recovery of cash Rs.180/- but complainant remained silent regarding such recovery.

13. The entry allegedly made in daily diary of the Police Station vide which the Police party left for patrolling though has been produced by the prosecution during the trial, nevertheless, the same is photocopy and that too without signature or proper attestation. Therefore, applying the principle enunciated in case of Muhammad Arif v. The State reported in 1995 MLD 1680, it is clear that the photocopy of unsigned and unattested daily diary entry produced at the time of trial has no evidentiary value and cannot be relied upon for corroborating the factum and purpose of departure of complainant along with Police party from Police Station equipped with the apparatus essentially required for sealing the alleged case property. Resultantly the events which occurred pursuant to suspicious departure of Police party cannot be assumed to have been proved beyond shadow of doubt. It is also noticed with jade and critical eye that the same Police party failed to apprehend the other person who, as per FIR, allegedly fell down along with appellant owing to skidding of motorcycle on the evening of incident. This aspect of the prosecution case is incomprehensible and has veiled the entire case with cloak of suspicion, thereby rendering the alleged recovery of weapon doubtful.

14. In the case of Abdul Mujeeb v. The State 1998 PCr.LJ 1381 observed as under:-- "Absence of private Mashirs violates the provisions of section 103, Cr.P.C. especially in view of the fact that no effort has been made to join the members of the public so as to comply with the mandatory provisions of section 103, Cr.P.C. Keeping in view the fact that nothing has come on record to show that effort in such direction of having private Mashirs was made, hence it would become difficult to uphold the impugned judgment."

15. It is well settled principle of appreciation of evidence that the benefit of all the favorable instances in the prosecution evidence must go to the accused regardless of the fact whether such plea has been taken or not.

16. In the case of Tariq Pervaiz v. The State 1995 SCMR 1345 it has been held that; "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".

17. After having analyzed entire case, considering the above mentioned lapses, applying golden principle of appreciation of evidence and seeking guidance from the dicta laid down in the above cited case laws, I am of the considered view that prosecution has failed to prove its case against appellant beyond reasonable doubt. Therefore, while extending the benefit of doubt, the appeal is allowed. The conviction and sentence recorded against the appellant, Arsalan son of Mohammad Iqbal vide judgment dated 07.04.2016, passed by learned IInd Additional Sessions Judge, Karachi Central is set-aside. The appellant is present on bail. His bail bond stands cancelled and surety is discharged. JK/A-3/Sindh Appeal allowed.