2022 P Cr (PLP)

ZULFIQAR ALI SANGI, J.

Through instant criminal appeal, the appellant Nakeef son of Suhrab Nindwani has assailed the Judgment dated 21.01.2021, passed by the learned Sessions Judge, Kashmore at Kandhkot in Sessions Case No. 551/2020, re: State v. Nakeef Nindwani, being outcome of Crime No.39/2020 of Police Station Ghulam Sarwar Sarki under sections 23(1)(a), 24 of Sindh Arms Act, 2013, whereby the trial court has convicted the appellant under section 265-H(ii), Cr.P.C, for committing offence under section 25 of Sindh Arms Act, 2013, and sentenced him to undergo R.I for Five years and fine of Rs.20,000/- in default thereof, he shall further undergo S.I for one month more. Benefit of section 382-B, Cr.P.C. was also extended to accused. Accused Nakeef was present on bail, he was taken into custody and remanded to jail to serve out the sentence awarded to him.

2. Brief facts of the prosecution case as per FIR lodged by complainant ASI Qadir Bux Dahani, are that on 25.09.2020, at 1030 hours, accused Nakeef was apprehended at spot in injured condition, in Crime No.38/2020 under sections 402, 324, 353, 34, P.P.C., along with one TT pistol with erased number, fitted with magazine, containing Five live bullets of 30 bore and one motor cycle CD.70 model 2018 was also recovered from the spot. The accused could not produce any valid license for possessing the weapon and live bullets. As such complainant after completing legal formalities, took accused and case property to PS, where he lodged FIR of main case under sections 402, 324, 353, 34, P.P.C., so also separate FIR under sections 23(1)(a), 25 of Sindh Arms Act, 2013, on behalf of the State.

3. After usual investigation the accused was challaned before the Court showing him in custody. Necessary papers were supplied to accused as per receipt at Ex.1. Formal charge was framed against accused at Ex.2, to which he pleaded not guilty and claimed to be tried vide his plea at Ex.3.

4. The prosecution in order to prove its case, examined complainant ASI Qadir Bux Dahani at Ex:4, he produced departure entry at Ex.4-A, memo of arrest of accused and recovery at Ex:4-B and FIR at Ex:4-C, P.W-2 PC Muhammad Sharif was examined at Ex.5, he produced memo of inspection of place of vardat at Ex.5-A, PW-3 ASI Balch Khan at Ex.6, he produced departure entry at Ex.6-A and report of Forensic Science Laboratory Forensic Division Larkana at Ex.6-B. Thereafter, learned I/C DPP for the State closed side of prosecution, vide his statement at Ex: 7.

5. The trial Court recorded statement of accused under section 342, Cr.P.C. wherein he denied the prosecution allegations, claimed his innocence and false implication in this case. However, the appellant/accused neither examined himself on oath nor he produced any defence evidence.

6. After assessment of evidence, learned trial court has passed the above impugned judgment and awarded sentence to the present appellant/accused as mentioned above. Being aggrieved by and dissatisfied with the said judgment appellant/accused above named has preferred this criminal appeal.

7. Learned counsel for the appellant has contended that the appellant is innocent and has falsely been implicated in this case just to show efficiency; that the prosecution has failed to establish its case against accused; that all the P.Ws are police officials and are very much interested in the investigation and no independent witness was examined. He has further argued that there are material contradictions in evidence of P.Ws, which create doubt in the prosecution case. He further contended that the accused was arrested from his house and subsequently complainant has managed a false and fabricated case against him and that the pistol and live bullets have been foisted upon the accused. He has lastly prayed for the acquittal of the accused.

8. Learned Deputy Prosecutor General has submitted that prosecution witnesses have fully supported the case; that as per law the police officials are good witnesses then the private witnesses; that the forensic report of the T.T pistol recovered from possession of present accused and the empties secured from the place of vardat was in positive, thus the report of Expert has fully corroborated the ocular version, which can be used against the accused as one of the important piece of evidence to establish the guilt. He has prayed that the impugned judgment be maintained and appeal of the appellant may be dismissed.

9. I have heard learned counsel for the appellant and learned D.P.G. for the State and have gone through the material available on the record with their able assistance.

10. It is observed that the appellant was also convicted in the main case by the same trial judge in Session case No: 577 of 2020 re State v. Nakeef Nindwani and others arising out of Crime No. 38 of 2020 P.S Ghulam Sarwar Sarki for offence under sections 324, 353, 402, 34, P.P.C., and the appellant preferred the appeal No. S-03 of 2021 and the same was allowed by this court and the appellant was acquitted from the charges. This court in respect of the recovery of crime weapon has observed as under:- "

15. As regards to the recovery of crime weapon viz pistol from the appellant, after the reassessment of entire evidence produced by the prosecution I found that the same was foisted upon the appellant. It was also alleged by the prosecution that the recovery of pistol and the empties from the place of vardat were effected on 25-09-2020, and same were sent for FSL on 29-09-2020, no explanation in respect of such delay for about five (05) days was offered by the prosecution. Non explanation of such delay in the circumstance of the case in hand coupled with the fact that none of the police official received any injury during the encounter and the other above discussed circumstance is fatal to the case of prosecution. In the circumstance the positive FSL cannot be relied upon for convicting the accused. Moreover, the safe custody of the recovered pistol and the empties for those five (05) days was not proved by the prosecution by producing any evidence in this respect. Reliance is placed on the case Muhammad Amir and others v. The State (2020 MLD 1777), wherein Division Bench of this court has held as under:-

13. It is further observed that as per record, the weapons allegedly recovered from the appellants on 29.06.2019, but the same were received to the office of the Assistant Inspector General of Police, Forensic Division, Sindh, Karachi, on 02.07.2019 after delay of about two (2) days for which no explanation has been furnished by the prosecution. Moreover, the pistols and bullets were retained by whom during this intervening period has also not been explained by the prosecution. For the sake of arguments, if it is assumed that the case property was lying in the Malkhana then no report/entry of the Malkhana has been produced to corroborate the version of prosecution. No official from Forensic Division has been examined in this case. I.O. nowhere has deposed about safe custody of the empties and pistol at Police Station and their safe transmission to the Ballistic Expert, as such positive report of FSL would not improve the case of prosecution. Law is well-settled by now that prosecution is under legal obligation to .prove the safe custody of the recovered weapon and its safe transmission to the Forensic Science laboratory as held by the honourable Supreme Court in the case of Kamal Din alias Kamala v. The State (2018 SCMR 577). In the present case appellant Amir received injury whereas neither any police personnel or police mobile received any bullet when it is asserted by P.W PC Mubarak Ali that accused made straight fires upon them from front side. Based on the evidence led, we are of the view that the prosecution story regarding a police encounter does not appeal to logic and the benefit of the doubt must go to the accused."

11. The entire evidence of the prosecution witnesses was carefully examined and it is observed that the trial judge has committed illegality while keeping the evidence of prosecution witnesses recorded in the main case by way of copy and paste in this case and only few lines from the examination-in-chief of Muhammad Sharif were deleted. It is further observed that only change was at the head of the page of the deposition where only the case number and other particulars were changed by the trial court otherwise the examination-in-chief and the cross-examination are same word by word including the commas and full stops. It is settled by now that this practice of copy from the evidence of main case and paste it in the evidence of offshoot case is illegal, unlawful and the same may be stooped. In view of the considering facts and circumstances of the case the trial courts are directed to record the evidence of each witness separately in all the separate cases if not amalgamated in accordance with law.

12. Considering the evidence recorded by the trial court and the fact that the arrest of the appellant and the entire encounter was managed one hence the recovery of pistol from the place of vardat near to the appellant is doubtful. The above criminal appeal was allowed vide short order dated 09.04.2021. Impugned judgment dated 21.01.2021, passed by learned Sessions Judge, Kashmore at Kandhkot in Sessions Case No.551/2020, re: State v. Nakeef Nindwani was set-aside. Appellant Nakeef Nindwani was acquitted of the charge in FIR No.39/2020 of Police Station Ghulam Sarwar Sarki, under sections 23(i)(a), 25 of Sindh Arms Act, 2013. He was ordered to be released forthwith if not required in any other custody case. 18(sic.) These are the reasons of the said short order. JK/N-13/Sindh Appeal allowed.