2020 PLP 122 (YLRN)

ABDUL MAALIK GADDI, J.

Appellant Syed Asim Raza son of Kaleem Raza has filed this appeal challenging the judgment dated 20.11.2017 passed by the learned IIIrd Additional Sessions Judge, Karachi (East), in Sessions Case No.362 of 2014 arising out of Crime No.3 of 2014, registered at Police Station Awami Colony, under Section 23(i)(a) of Sindh Arms Act, 2013, whereby the appellant has been convicted and sentenced under Section 265- H(ii), Cr.P.C. for offence under Section 23(i)(a) of Sindh Arms Act, 2013, to suffer S.I. for two (2) years with fine of Rs.10,000/- and in case of default in payment of fine, it was further ordered that appellant shall suffer S.I. for one (1) months more. However, the benefit of Section 382-B, Cr.P.C. was also extended to the appellant.

2. The brief facts of the prosecution case leading to the filing of this appeal are that on 03.01.2014, police party headed by SIP Manzoor Hussain of Police Station Awami Colony along with his subordinate staff were busy on patrolling and at about 2230 hours, when they reached at main Korangi Road, Timber Market, Korangi No.6, Karachi, they saw one person present there in suspicious condition, therefore, police party apprehended him and on inquiry, he disclosed his name as Syed Asim Raza son of late Syed Kaleem Raza. On personal search, police recovered one 30 Bore T.T. Pistol bearing No.31001524 loaded with magazine containing four rounds live from his possession. As appellant could not produce the license of said weapon, therefore, he was arrested on spot in presence of mashirs. Thereafter, police party brought the appellant along with case property at police station, where the aforesaid FIR was lodged against the present appellant.

3. The charge was framed on 24.04.2015 at Ex.2 against the accused by the learned trial Court, to which he pleaded not guilty and claimed to be tried vide his plea at Ex.2/A.

4. At trial, in order to establish accusation against appellant/accused, prosecution had examined following witnesses:-- i. PW-1/complainant SIP Manzoor Hussain at Ex.3, who produced memo of arrest and recovery, arrival entry and FIR at Ex.3/A to Ex.3/C respectively; ii. PW-2 ASI Muhammad Naeem at Ex.4, who produced memo of sitate inspection and site map, letter for sending the case property to FSL and its report at Ex.4/A to Ex.4/D respectively; iii. PW-3 ASI Kashif Sarwar at Ex.5; iv. PW-4 Raza Hassan Javed, Firearm examiner, at Ex.6, who produced letter for sending the case property to FSL at Ex.6/A. These witnesses were cross-examined by the Counsel for appellant. Thereafter, learned ADPP closed the prosecution side vide Statement at Ex.7.

5. Statement of appellant was recorded under Section 342, Cr.P.C. at Ex.8, in which he has denied the allegations as levelled by the prosecution by stating that he is innocent and nothing was recovered from him. He further stated that alleged weapon has been foisted upon him. However, appellant neither examined himself on Oath nor led any evidence in his defence.

6. Mr. Muhammad Imran Meo, the learned Counsel for appellant contended that appellant is innocent and has been falsely implicated by the police; that the alleged recovery of weapon has been foisted upon him; that the evidence so brought on record by the prosecution witnesses in this case is contradictory in nature to each other on material particulars of the case. During the course of arguments, learned Counsel for appellant has taken to me towards the evidence of prosecution witnesses and highlighted the number of contradictions in between the statements of prosecution witnesses, therefore, according to him, on the basis of contradictory evidence, conviction could not be maintained, hence, prayed for acquittal of appellant.

7. In contra, Mr. Sagheer Ahmed Abbasi, learned Assistant Prosecutor General, Sindh for the State has supported the impugned judgment passed by the trial Court and contended that the appellant was arrested on spot and one unlicensed 30 bore TT Pistol bearing No.31001524 containing four live bullets lying in its magazine was recovered from his possession in presence of mashirs and said weapon was in working condition, so also the mashirs have fully supported the case of prosecution; that offence committed by the appellant is serious and heinous in nature, thus, appellant is not entitled for any relief.

8. I have given my anxious thoughts to the contentions raised at the bar and have also gone through the case papers so made available before me.

9. After careful consideration and meticulous examination of the available record, suffice to say that mere heinous nature of offence is not sufficient to convict the accused because the accused continues with presumption of innocence until found otherwise at the end of the trial. It is the settled principle of law that burden is always upon the prosecution to prove the case beyond shadow of doubt. Keeping in view of this basic touchstone of criminal administration of justice, I have examined the ocular evidence as well as circumstantial evidence, along with impugned judgment.

10. After going through the record, I have come to the conclusion that the prosecution has failed to prove its' case against the appellant for the reasons that as per prosecution story, present appellant was arrested by the police party from the main Korangi Road, Timber Market, Korangi No.6, Karachi, but they did not bother to call/associate any independent person from the place of incident, although, it has been brought on record that place of information was a thickly populated area. No plausible explanation was offered by the prosecution why police did not associate any independent person from the place of incident to witness the arrest and recovery proceedings. It is also alleged that police party was on patrolling and when they reached at pointed place, present appellant/accused was found in suspected condition, as such, he was arrested and police recovered one .30 Bore T.T. Pistol bearing No.31001524 loaded with magazine containing four rounds live from his possession, in presence of mashirs namely HC Muhammad Shareef and PC Kashif Sarwar. It has also been brought in evidence that the place of incident is a thickly populated area, which is surrounded by market, shops and house, despite this fact, police did not bother to associate any independent person of the locality to witness the recovery proceedings. In my view, provision of Section 103, Cr.P.C. is mandatory in nature and cannot be ignored without any proper justification. The prime object of the above provision is to ensure the transparency and fairness on the part of police during the course of recovery, curb the false implication and minimize the scope of foisting of fake recovery upon the accused.

11. It is significant to mention that Section 34 of Sindh Arms Act, has not expressly excluded the provision of Section 103, Cr.P.C. but on the contrary, Section 34 has provided a legal cover that police officials also can act as witnesses of recovery besides the private persons. The proviso of Section 34 of Sindh Arms Act, provides that any police officer or person present on the spot can be witnessed of search and recovery, therefore, it was prime duty of the police to prefer a private witness if available at the spot to maintain transparency and fairness of the alleged recovery. It is the prime duty of Courts to ensure during the course of the administration of justice that there must be a plausible explanation for non-association of witnesses from public. Adverting to the merits of the case in hand, no valid reason or plausible explanation has been furnished by the prosecution for non-association of independent witnesses by the police when independent people were available at the place of recovery, which was a thickly populated area. Therefore, on this ground false implication of the appellant in this case could not be ruled out.

12. I have also gone through the evidence of prosecution witnesses so made available on record and found the same is contradictory on material particulars of the case to each other. For instance, PW-1/complainant SIP Manzoor Hussain in his examination-in-chief at Ex.3 deposed that "the pistol had number as 31001524", but during recording of his evidence, when the case property was de-sealed with the permission of trial Court, its description was different as "one black plastic shopper and one black colour 30 bore pistol, one side of plastic butt is broken, one magazine, 4 rounds live and one empty of the FSL. The pistol and the magazine was in rusty condition", which makes the prosecution story as doubtful. Furthermore, in his cross-examination, he deposed that "it is incorrect that I did not try to associate any private witness at the time of arrest of accused. It is correct that I have not mentioned the names of persons whom I tried to associate as witness at the time of arrest of accused", which also makes the prosecution story as doubtful one. Moreover, complainant/ SIP Manzoor Hussain failed to produce the departure entry for the effect that when police party left the police station for patrolling. However, arrival entry is available on record, but on perusal, it is surprising to note that there is overwriting on the number of arrival entry. Not only this, PW-1 /complainant SIP Manzoor Hussain in his cross-examination further deposed that the dasta of alleged weapon was broken. I have also perused the evidence of other prosecution witnesses and found that the same are also contradictory to each other on material particulars of the case; under the circumstances, no reliance can safely be placed on the contradictory evidence, which is full of doubtful.

13. Admittedly, in this case, there are number of infirmities/lacunas, which have created serious doubt in the prosecution case. It is settled principle of law that for extending benefit of doubt, it is not necessary that there should be multiple circumstances creating doubt. If a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in the case of Tariq Pervez v. The State reported as 1995 SCMR 1345, wherein the Hon'ble Supreme Court has held as under:- "The concept of benefit of doubt to an accused person are 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."

14. For the above stated reasons, while respectfully relying upon the above cited case law, I have no hesitation to hold that prosecution has failed to prove its' case against the appellant beyond any shadow of reasonable doubt. Consequently, Appeal is allowed, conviction and sentence awarded by the trial Court vide judgment dated 20.11.2017 are set-aside. Appellant is present on bail, his bail bond is cancelled and surety stands discharged. MH/A-52/Sindh Appeal allowed.