2013 PLP 1349 (YLR)

SYED MUHAMMAD FAROOQ SHAH, J.

Captioned appeal has been preferred by appellant Budho Umerani against conviction awarded by the learned trial Court under section 13/D Arms Ordinance and sentenced to undergo five years' R.I and to pay fine of Rs.50,000 and in default further undergo six months' R.I. It is alleged that he was holding an unlicensed K.K loaded with 17 live bullets, recovered from his possession.

2. Story of the prosecution as narrated in the memo of recovery and arrest reveals that during patrolling complainant A.S.-I. Shahid Ali found information about presence of proclaimed offender (Budho Umerani) near village Muhammad Yousif Joyo Musafirkhana Stop adjacent to Shah Tarial Road. On such spy information he proceeded there and found the appellant/ accused at 2030 hours and from his possession illicit weapon was recovered in presence of police constable Bashir Ahmed and police driver Zainul Abdin Shah. Thereafter, F.I.R. was lodged in a book under section 154 Cr.P.C. viz. Crime No.131 of 2011 and on completion of usual investigation the appellant/accused was charge-sheeted in the Court.

3. Admittedly, all P.Ws. are police officials and their evidence is carefully perused. In support of its contention, the prosecution examined mashir police constable Bashir Ahmed (Exh.6), who deposed in examination-in-chief that A.S.-I. Shahid Dars received spy information regarding presence of the accused at the pointed place but in cross-examination, he has stated that spy information was received by A.S.-I. on telephone. Another witness of prosecution is A.S.-I. Ghulam Shabir who has stated that he received the F.I.R., memo of arrest and recovery, custody of accused and sealed property, recorded the statements of police constable Bashir Ahmed, Mushtaq Ali and D.P.O. Zainul Abdin under section 161, Cr.P.C. and sent the case property to the Ballistic Expert for report and produced necessary documents. In cross-examination, he has admitted that he made entire 'Karwai' at Police Station at the instance of A.S.-I. Shahid Dars. He has further stated that during investigation, he came to know that accused is a hardened and criminal person.

4. Perusal of the R&Ps transpires that star witness of the prosecution is A.S.-I. Shahid Dars who has acted as complainant and made the alleged recovery, in chief, he deposed that weapon was sealed at the place of occurrence in presence of mashirs and prepared the necessary memo. In cross, however, the complainant admitted that he did not mention the place which he patrolled prior to reaching the place of information and that he has also not mentioned that as to whether the spy informed him on telephone. He has also admitted in cross that he did not mention that who first apprehended the accused but again changed and stated that he himself apprehended the accused. Further stated that there are more than 11 cases registered against the present accused, in which he has been notified as dacoit and head money is fixed for his arrest or kill him but he has not given the description of cost. He has also admitted in cross-examination that there was no private person acted as mashir of arrest and recovery as there was no other private person at the time of arrest of the accused. It is further stated that, "I do not know that during the days of arrest of accused, the police was celebrating the week for arrest of absconding accused persons and that I do not know that accused was wanted in Crime No.93 of 2010 under sections 401, 368 at Police Station Talhar and on that day he was ill and confined to bed but in spite of that his father had produced when he gone to village of accused."

5. Cursory examination of testimony of three police officials, examined by the prosecution depicts sufficient contradictions in their depositions. I have also perused the impugned judgment, wherein the learned trial Court observed that evidence of police officials is as good as others until and unless it is proved that there was mala fide on the part of police to implicate or involve the accused. To support its version, the learned trial Judge did not place reliance on any case-law nor any provision of criminal law has been cited. Moreso, while awarding conviction to the accused, the learned trial Court observed at Para 9 of the judgment that accused has failed to bring on record any evidence so as to show that he was falsely implicated in this case on account of any enmity with the police.

6. Perusal of the record reveals that the case of the prosecution is doubtful in nature, in respect of appellants. The evidence available on the record in no way sufficient to lead to a conclusion that the accused/ appellants can be convicted of the offence alleged against them. In such circumstances, I arrived at the conclusion that the learned trial Judge has seriously erred by observing in the later part of the judgment that the prosecution has succeeded to bring home the charge against the accused beyond shadow of reasonable doubt. The findings of trial Court are not based on any valid evidence. The court has to juxtapose both the conflicting evidences in order to arrive at a conclusion as to which one of them to be chosen for reliance as true. In criminal trials under the general law, the onus always lies on the prosecution to prove it's case and the prosecution has to succeed upon the strength of its own case and not on the weakness of defence. It is well-settled principle of the safe administration of criminal justice that accused has only to show a dent having created in the case of the prosecution and that he is entitled to benefit of even single doubt depicts in the prosecution evidence and he has not to show that it is a case suffers from more than one doubt. It is an admitted position that it was a day time incident in thickly populated area but no respectable inhabitants of the locality has come forward to have witnessed the occurrence. The statement of P.Ws. regarding witnessing the occurrence is not inspiring confidence, therefore, cannot be relied upon the same without independent corroboration. It needs no reiteration that for the purpose of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge-makers, the whole case doubtful. Merely because the burden is on the accused to prove his innocence, it does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt and this duty does not change or vary in the case. A finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. Mere conjectures and probabilities cannot take the place of proof as held in Muhammad Luqman v. The State (PLD 1970 SC 10).

7. Moreso, Mrs. Razia Ali Zaman Khan, learned counsel representing the appellant placed her reliance on the case of Abdul Wahid v. The State (2012 YLR 200), wherein a Division Bench of Balochistan High Court in a case of recovery of alleged unlicensed Kalashnikov, along with 15 live rounds, likewise the present case, observed that "main objection of compliance of section 103, Cr.P.C. was to ensure that recovery was effected honestly and fairly, so as to exclude the possibility of false implication and fabrication. Section 103, Cr.P.C. was not a decoration, but designed to provide safeguard against Police excesses." The next citation relied on by learned counsel is the case of Ghulam Khan v. The State (2001 PCr.LJ 435), wherein it was observed that "provision of section 103, Cr.P.C. are mandatory. Non-association of private witnesses in recovery proceedings being a violation of section 103, Cr.P.C. would make the recovery doubtful especially when no reasons are given for effecting recovery without associating independent persons of the vicinity." The learned Bench acquitted the accused from charges of offence punishable under section 302, P.P.C.

8. On the other hand, learned A.P.-G. placed reliance on PLD 1986 Federal Shariat Court 242 and 2008 SCMR 1254, wherein it has been held that evidence of police official is as good as that of others.

9. I have considered the arguments advanced from both the sides and perused the record.

10. Prosecution narration is that the police was having advance information about presence of the accused at the pointed place but they did not bother to accompany any independent person of the locality to witness the search and recovery. Prosecution has miserably failed to prove that recovery is affected honestly, fairly so as to exclude the possibility of false implication and fabrication without joining disinterested and respectable persons, the alleged recovery is highly doubtful. Material discrepancies and lacuna are found in prosecution evidence, on the basis whereof no conviction could be recorded. Material contradictions among the depositions of prosecution witnesses also depicts and the P.Ws. have contradicted their examination-in-chief by cross-examination, as mentioned supra. The citations relied upon by learned A.P.-G. are not attracted to the circumstances of the present case particularly the evidence of police officials is not confidence-inspiring.

11. Whatever mentioned above, I reached at the irresistible conclusion that prosecution has miserably failed to prove the case against the appellant beyond shadow of reasonable doubt, therefore, the appeal is allowed. The sentence and conviction awarded to the appellant/accused by the trial Court vide judgment dated 14-11-2011 is set aside. Appellant is acquitted from the charge of this case. He is confined in Central Prison, Hyderabad. The Superintendent Jail is directed to release him forthwith, if not required in any other case. PROPERTY ORDER. (Appellant/accused did not claim the ownership of Kalashnikov and 17 bullets, therefore, the same be sent to District Armoury, for its disposal in accordance with law). HBT/B-19/K Appeal allowed.