2016 PLP 180 (YLRN)

S. 13-A(i)(c)

Possessing unlicensed arms

Appreciation of evidence

Benefit of doubt

No public person was associated to attest the recovery memo, despite, there were about 50/60 houses at the place where raid was conducted

Daily diary entry according to which complainant party had left for patrolling, had not been produced, which was mandatory

Non-sealing of allegedly recovered weapons and sending to Ballistic Expert for certificate to be functional had rendered the case doubtful

Circumstances as appearing in the matter, had created doubt as to the truthfulness of prosecution case

Prosecution having failed to prove the charge against accused beyond reasonable doubt, impugned judgment passed by the Trial Court, was set aside; accused was acquitted of the charge, he being on bail his bail bond stood cancelled, and surety discharged, in circumstances. [Paras. 9 and 10 of the judgment] Tariq Pervez v. The State 1995 SCMR 1345; Bashir and others v. State through Advocate General Sindh PLD 1997 SC 408; Javed Akhtar v. The State 1998 PCr.LJ 1462; Criminal Appeal No.68 of 2003 and Fareed Ahmed Langah v. The State 1998 PCr.LJ 1368 ref.

Benefit of doubt

Benefit of doubt would always go to accused; and for that purpose, it was not necessary that there must always be multiple circumstances

Even if a single circumstance, would create a reasonable doubt as to the guilt of accused that would entitle him to such benefit. [Para. 9 of the judgment] Tariq Pervez v. The State 1995 SCMR 1345 ref. Zahoor Shah, Assistant Prosecutor General for the State. JUDGMENT ANWAR HUSSAIN, J.

In the capacity of Special Court for Suppression of Terrorist Activities, the Sessions Judge, Jacobabad, convicted Appellant Shafi Muhammad under section 13-A(i)(c) of the Pakistan Arms Ordinance, 1965, registered with Police Station Mouladad vide Crime No.18/1997 for a term of three years' R.I and to pay fine of Rs.10,000/- and in default to suffer R.I. for six months with benefit of section 382-B, Cr.P.C.

2. The allegation against the present appellant is that on 8th April, 1997 at about 07:00 a.m, he was found in possession of unlicensed Kalashnikov No.56-14040813 loaded with 30 rounds and an extra magazine contained 30 rounds in his house situated in Deh Thariri, Taluka Jacobabad.

3. The charge against the appellant was framed on 04.07.1997.

4. To prove the charge, prosecution examined Complainant SIP Manzoor Ahmed (Ex-7), who has produced copy of Mashirnama of arrest and Recovery (Ex-8) and FIR at. (Ex-9). While Noor Muhammad, P.C./Mashir, is examined at (Ex-10). Thereafter, the Prosecution closed the side and the statement of the accused was recorded, wherein he claimed to be innocent and falsely implicated in this Crime.

5. Learned counsel for the Appellant submits that there is no independent witness, though presence of villagers is admitted by the Mashir in his cross-examination and so also existence of 50/60 houses; that the complainant himself is the I.O. and the other witnesses are his subordinates, thus the prejudice has been caused to the appellant; that the property was neither sealed nor sent to Ballistic Expert; that no entry of departure has been produced to substantiate the claim of the Prosecution that the raiding party actually had left the Police Station at the said hours, therefore, reasonable doubt has been created in the case of prosecution. In support of his contention, learned Counsel for the Appellant has placed his reliance on the cases of Tariq Pervez v. The State 1995 SCMR 1345, Bashir and others v. State through Advocate General Sindh PLD 1997 Supreme Court 408, Javed Akhtar v. The State 1998 PCr.LJ 1462 and unreported Judgment of Division Bench of this Court in Crl. Appeal No.68/2003 dated 25.05.2004.

6. The learned A.P.G has supported the impugned Judgment and contended that prosecution witnesses have fully supported the Prosecution case on all material points, therefore, the learned trial Court has rightly convicted the Appellant.

7. We have given careful consideration to the arguments and gone through the relevant papers available on record.

8. As per FIR (Ex-8), the Complainant left the Police Station in a private vehicle vide Roznamcha Entry No.25. It is also stated in the FIR that the property viz. Kalashnikov, was lying besides the accused on his bed. While Complainant Manzoor Ahmed in his evidence has stated that the Kalashnikov was lying near the cot, while Mashir/P.C, Noor Muhammad in his cross-examination has stated that the Kalashnikov was lying beneath the bed. Moreover, as per contents of FIR the bag wherein the Kalashnikov was kept was of brown colour, while in evidence complainant says that bag was of "Khaki" colour. It has also come in evidence that the property viz. Kalashnikov was neither sealed at place of wardat nor sent to Ballistic Expert.

9. It is an admitted fact on record that there were about 50/60 houses in the village and alleged raid was conducted by the Police at 07:00 a.m. in the month of April, at the house of Appellant, but no public person was associated to attest the recovery memo. The daily diary entry according to which complainant party has left for patrolling has not been produced. It is for prosecution always to establish the departure of police from the relevant Police Station when they setout for patrolling or to pointed place. In a case of Fareed Ahmed Langah v. The State reported in 1998 PCr.LJ 1368, it has been observed that non-production of vital documents surely creates serious doubt in relation to genuineness of prosecution story. So far non-sealing of property and sending to the ballistic expert for certificate to be functional of the weapon renders the case also doubtful. The above circumstances as appearing in the matter, creates doubt as to the truthfulness of prosecution case. It is settled principle of law that benefit of doubt always goes to the accused and for that purpose it is not necessary that there must always be multiple circumstances. Even if a single circumstance creates a reasonable doubt as to the guilt of the accused that entitle him to such benefit. In the case of Tariq Pervez v. The State 1995 SCMR 1345, while setting aside the conviction and sentence of the appellant therein it has been observed that benefit of doubt is to be extended to the accused not as a matter of grace or concession but as a matter of right.

10. In these circumastances, we are of the firm view that the prosecution failed to prove the charge against the appellant/ accused beyond reasonable doubt, therefore, the appellant is entitled to be acquitted. Accordingly, the appeal is allowed and impugned Judgment dated 30.06.2004, passed by judge, STA, Court District Jacobabad, is set aside and the appellant is acquitted of the charge. The appellant is present on bail, his bail bond stands cancelled and surety discharged. HBT/S-41/Sindh Appeal allowed.