2019 PLP 1962 (MLD)

ABDUL HAMEED BALOCH, J.

This appeal is directed against the judgment dated 29.10.2018 ("impugned judgment") passed by the learned Additional Sessions Judge, Pishin ("trial court") whereby the appellant was convicted under Section 13-e of the Arms Ordinance, 1965 and sentenced to suffer Rigorous Imprisonment for three years with fine of Rs.5,000/- in default whereof to further suffer one month Simple Imprisonment. Benefit of Section 382-B, Cr.P.C. was extended to him.

2. Brief facts of the case are that on 16.07.2019, at about 10:50 a.m., the complainant Sher Muhammad IP/SHO, lodged an FIR No.80 of 2018, with Police Station Pishin, alleging therein that on the stated date during routine patrolling, he received spy information that a person namely Nasibullah having a TT Kove, is standing in front of his house, whereupon he along with other police personnel reached there. The said person on seeing police party tried to escape but he was overpowered and a TT Kove was taken from his possession. The TT Kove was unloaded; resultantly 12 live rounds were recovered from magazine. On further search, nine notes of Rs.5000/5000, thirty five notes of Rs.1000/1000, total 80000/- were recovered from his right side inner pocket. On query, the accused failed to produce any license/permit of the TT Kove, consequently, the instant case was registered.

3. After completion of investigation the challan was submitted before the trial court, whereby charge was framed and read over to the appellant to which he did not plead guilty and claimed trial. Thereafter the prosecution lead its evidence to substantiate the charge. On completion of prosecution evidence the appellant was examined under Section 342, Cr.P.C. wherein he once again professed his innocence. The appellant did not record his statement on oath as envisaged under Section 340(2), Cr.P.C. nor produced any witness in his defence. On conclusion of the trial the appellant was convicted in the aforesaid terms. Hence this appeal.

4. Learned counsel for the appellant contended that the impugned judgment is contrary to the law and facts of the case; that the appellant has been arrested in the populated area and despite availability of independent private witness, the provisions of Section 103, Cr.P.C. have not been taken care of as the prosecution has failed to produced any private witnesses to authenticate the recovery; that although the prosecution has recorded the statement of private witness under Section 161, Cr.P.C. but has failed to produced the said witness before the trial court; that the prosecution has sent the arms to the forensic science laboratory for analysis with delay of 27 days without any explanation; that the prosecution case is doubtful, and the appellant is entitled to be extended benefit of doubt. The learned counsel while placing reliance upon (2018 MLD 1608) and (2019 MLD 670), urged for setting aside the impugned judgment and prayed for acquittal of the appellant.

5. Conversely, learned DPG defended the impugned judgment on the ground that a TT Kove along with magazine and cartridges were recovered from the possession of the accused/appellant; that the police officials are good witnesses as other; that there is no personal grudge of the police with the appellant; that despite lengthy cross-examination, the prosecution witnesses were not shaken and they remained firm on their deposition. He lastly urged for dismissal of the appeal.

6. I have heard the learned counsel for the appellant, learned DPG and have perused the available record with their able assistance. I am unable to agree with the findings of the trial court. The statements of the prosecution witnesses are unconvinced. The complainant of the case narrated the story in the Fard-e-Bayan that on spy information they proceeded to the place of occurrence, where the appellant was found present having TT Kove in his hand in front of his house and the PW-2 being recovery witness also repeated the same story. It is not appealable to the prudent mind that the appellant on seeing police party did not try to enter into his house or resisted them to abandon him. PW-2 in cross-examination stated that no one was present at the spot during arrest of the appellant while PW-3 (Investigating Officer) stated that he recorded the statement of private witness namely Dost Muhammad under Section 161, Cr.P.C. on the spot, where PW-1 was also present. Since the Investigating Officer recorded the statement of private witness Dost Muhammad, but the prosecution did not produce the said witness during the trial without any justification. In my view, the non-production of said Dost Muhammad left a big dent in the veracity of the prosecution story as accordance to Article 129 illustration (g) of Qanun-e-Shahadat Order, 1984, which reads as under:--

129. Court may presume existence of certain facts. The Court may presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and the public and private. business, in their relation to the facts of the particular case. Illustrations The court may presume: (g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. The Hon'ble Supreme Court of Pakistan in the case of Muhammad Rafique and others v. State and others (2010 SCMR 385) held as under:- "that if any party withholds the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129(g) of Qanun-e-Shahadat Order can fairly be drawn that if PW would have been examined, his evidence would have been unfavourable to the prosecution".

7. According to prosecution story, on spy information, the appellant was arrested near to his house, under such circumstances having prior information the prosecution requires to comply with the provision of 103, Cr.P.C. to associate two respectable persons from the locality, and in absence of any independent witness, it is mandatory upon the prosecution to show that in the circumstances of the particular case it was not possible to have a mashir from the public, but the statements of police officials indicate that no steps were taken to secure two mashirs from the public, as such the recovery has become doubtful. Reliance is placed in the case of Mushtaq Ahmed v. State PLD 1996 SC 574.

8. The perusal of record reveals that the appellant has been arrested on 16.7.2018 but the suspected weapon was received by the FSL on 13.8.2018. The Investigating Officer has failed to explain as to why the weapon was kept for 27 days, which creates serious doubt in the prosecution case. The benefit of doubt always goes to accused. In case of Tariq Pervaiz v. State 1995 SCMR 1345, the Hon' able Supreme Court held as under: "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."

9. The above discussion suffices to form the opinion that the prosecution had miserably failed to establish the guilt of the appellant and commission of the offence. For the above reasons, the Criminal Appeal No.67 of 2018 is allowed. The impugned judgment dated 29.10.2018 passed by the learned Additional Sessions Judge, Pishin is set aside and while extending benefit of doubt the appellant is acquitted of the charge in Case FIR No. 80 of 2018 Police Station Pishin, under Section 13-e of the Arms Ordinance, 1965. The appellant is on bail, his bail bonds stand discharged. MH/66/Bal. Appeal allowed.