2019 P Cr (PLP)

MUHAMMAD IQBAL MAHAR, J.

This appeal is directed against the Judgment dated 9th July 2015 passed by learned Sessions Judge, Tando Muhammad Khan in Sessions Case No. 22/2014 (Re: State v. Ali Asgar Lashari) arising out of FIR No. 21/2014 Police Station Tando Ghulam Hyder, whereby the appellant was convicted and sentenced for offence under section 23(i), Sindh Arms Act, 2013 to suffer R.I for two years' with fine of Rs.10,000/-, in default thereof to suffer S.I for two months' more, however benefit of section 382-B, Cr.P.C. was extended to him.

2. Precisely, prosecution case is that on 09.05.2014 complainant A.S.I, Maqbool Ahmed Notkani along with his subordinate staff left P.P for patrolling and when at 2130 hours reached on Nango Shah link road at abandoned Mori arrested appellant in main case punishable under sections 401, 398, 341, P.P.C. and recovered a .32 bore pistol loaded with six bullets in magzine for which he could not produce license. The police party prepared such mashirnama and brought the appellant and property at Police Station and lodged FIR of main case as well as of instant case.

3. After usual investigation, the investigating officer submitted challan of the case before the Court of law. The learned trial Court observed all legal formalities and framed the charge against the appellant at Ex: 2, to which he pleaded not guilty and claimed trial.

4. To substantiate the charge, prosecution examined mashir PC Shafi Muhammad at Ex-6, who produced memo of arrest and recovery at Ex. 6-A, complainant ASI Maqbool Ahmed at Ex. 10 who produced roznamcha entries, FIR and FSL report at Ex. 10-A to 10-D and then learned ADPP closed the side of prosecution vide statement at Ex.11.

5. After the conclusion of prosecution evidence, statement of appellant was recorded under section 342, Cr.P.C. at Ex.12, in which, he denied the prosecution case and claimed his innocence. However, neither he examined himself on oath nor led any evidence in defense. Learned trial Court after hearing the learned counsel for the appellant, learned ADPP for the State convicted the appellant as stated above. The appellant feeling aggrieved by the impugned judgment filed instant appeal.

6. Learned counsel for the appellant contended that the impugned judgment passed by learned trial Judge is contrary to law and facts of the case; that the learned trial Court without applying judicial mind convicted the appellant; that the appellant has been acquitted from main case in which same witnesses have been disbelieved by learned trial Court; that the pistol was sent to FSL with delay of four days which has not been explained by the prosecution; that neither the letter through which the property was sent to FSL was produced nor the police constable who delivered the property to FSL was examined by the prosecution; that the complainant himself has investigated the case, which shows his interest in the case; that there are many contradictions in the evidence of both the witnesses which have not been considered by learned trial Court. He lastly concluded that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt hence he prayed for acquittal of the appellant. In support of his arguments learned counsel has relied upon case of Fida Hussain v. The State (2012 PCr.LJ 226) and Taj Wali and others v. The State (2005 SLJ 363).

7. Learned D.P.G appearing for the State did not support the impugned judgment and conceded for acquittal of the appellant.

8. Heard arguments of learned counsel for the appellant, learned DPG for the State and examined the record minutely. The prosecution case is that on the day of incident, the police party headed by A.S.I, Maqbool Ahmed during patrolling at abandoned Mori apprehended the appellant in main case and recovered unlicensed pistol from his possession but the appellant and co-accused have been acquitted from the main case in which same witnesses were examined by the prosecution but the learned trial Court convicted the appellant in off shoot case. The learned counsel for the appellant has filed certified true copy of judgment of main case. In case of Fida Hussain v. The State supra High Court of Balochistan has observed that: "I noticed that the appellant has been acquitted in Crime Nos.1 of 2011 and 2 of 2011 and this is an off-shoot of the above cited crimes, as such, the appellant is entitled to be acquitted in the instant case, which is an off shoot of the said cases. I have also noticed that Ghulam Haider was not only complainant but was also investigating officer in the said cases and the trial Court had disbelieved his evidence in both the cases is but surprisingly, convicted and sentenced the appellant in instant case on the basis of same evidence."

9. It is also case of prosecution that the recovered pistol and bullets were sealed at spot and were sent to Ballistic expert for report after four days but the report reveals that the property was received in the office on fifth day and there is no explanation as to why the constable kept it with him for one day. The prosecution did not examine the constable to explain the position. Furthermore, when the PWs were examined in Court they simply stated that the accused and property present in Court are same. The record does not show that the property was de-sealed in Court and was shown to the PWs or exhibited in evidence. In case of Sajjan v. The State (1998 PCr.LJ 1399) this Court has observed as under: Even during the trial when prosecution evidence was recorded, the weapon which has been produced has neither been described nor the details of such weapon have been given. Evidence only to the extent has come on record that the property lying in the Court is the same. In the absence of the weapon and ammunition having not been sealed upon recovery and in the absence of the said weapon having not been certified to be functional as well as in the absence of the weapon ammunition not being described in the evidence renders the case against the appellant to be doubtful". 11(sic.) Apart from above there are material contradictions in evidence of eye-witnesses which cannot be ignored while deciding the case and on the basis whereof, no conviction could be recorded but the learned trial Court has not taken into consideration while passing the impugned judgment.

12. The above defects and contradictions in evidence created doubt in prosecution case and it is well settled principle of law that every doubt is required to be resolved in favour of the accused. In this respect reliance can be placed upon case of Tariq Parvez v. The State (1995 SCMR 1345) wherein it has been held by Honourable Supreme Court of Pakistan that: "For giving benefit of doubt to appellant 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 matter of right".

13. In the light of what has been discussed above and case law I am of the considered view that the prosecution has failed to prove its case against the appellant beyond any reasonable doubt, therefore, present appeal was allowed, impugned judgment passed by learned Sessions Judge, Tando Muhammad Khan was set aside and the appellant was acquitted of the charge. The above are the reasons of my short order dated 28.05.2018. JK/A-115/Sindh Appeal allowed.