2021 P Cr (PLP)

MUHAMMAD SALEEM JESSAR, J.

Through this Criminal Appeal appellant Nazeer Ahmed has assailed judgment dated 30.07.2015 handed down by learned Additional Sessions Judge, Tando Mohammad Khan in Sessions Case No.37 of 2014 (re: The State v. Nazeer Ahmed) being outcome of FIR No.25/2014 registered at Police Station Mullakatiar, whereby appellant has been convicted for offence punishable under section 23(i) of Sindh Arms Act, 2013 and sentenced to suffer R.I. for 03 (three) years and to pay fine of Rs.5,000/- (Rupees Five thousand only) and in default to suffer S.I. for two months more. However, the accused was extended benefit of section 382-B, Cr.P.C.

2. Concisely, the facts of the prosecution case as disclosed by complainant SIP Qamar-ul-Zaman Khoso in FIR No.25 of 2014 registered at Police Station Mullakatiar under section 23(i) of Sindh Arms Act, 2013, are that on 16.07.2014 he along with his subordinate staff, namely PC Shafiullah, PC Faiz Mohammad and DHC Wahid Bux left police station vide entry No.07 at 1130 hours for patrolling on government vehicle No.SP-5930. After visiting various places, when they reached at Wassi Malook Shah adjacent Chowk, they saw one person standing beside the road, who seeing the police party tried to run away but police party encircled and apprehended him at 1230 hours. On inquiry, he disclosed his name as Nazeer Ahmed alias Shadeed son of Mohammad Ismail, by caste Ghambir, resident of Wassi Malook Shah, Taluka Bulri Shah Kareem. From his personal search one T.T. Pistol of .30 bore was recovered. After unloading the pistol on checking of the said pistol, a magazine containing four live bullets was found. The accused could not produce license of the said pistol; therefore, the pistol was sealed in white cloth bag and mashirnama was prepared in presence of mashirs, namely PC Faiz Muhammad and PC Shafiullah. The recovered property and the accused were brought at police station where FIR was lodged against the accused.

3. After registration of the case and completion of usual investigation, the challan was submitted against the accused before the concerned Court. A formal charge was framed against the accused on 18.08.2014 vide Ex-2, to which he did not plead guilty and claimed to be tried vide his Plea Ex.3.

4. In order to prove the charge against the accused, prosecution examined PW-1 mashir PC Faiz Mohammad as Ex-04, who produced mashirnama of arrest and recovery and another mashirnama of place of incident as Ex.4/A and Ex.4/B. P.W.2, complainant/SIP Qamar Zaman Khoso was examined at Ex.6, who produced FIR and carbon copies of departure and arrival entries Nos.7 and 8 as Ex.6/A to Ex.6/C. PW-3 ASI Akhtar Hussain Qambrani, I.O. of the case, was examined at Ex.7, who produced letter dated 17.7.2014 sent to FSL, departure entry No.7 and examination report of FSL as Ex.7/A to Ex.7/C, respectively. Thereafter, learned A.D.P.P appearing for the State closed prosecution side by his Statement as Ex.8.

5. Statement of accused under section 342, Cr.P.C. was recorded vide Ex.08, in which he denied the allegations levelled against him by the prosecution and stated that he has been falsely implicated in the case at the instance of Qasim Naveed at whose house the accused and his wife used to work and on refusal of the accused, he has been falsely implicated in the case. However, the accused neither examined himself on oath as provided under section 340(2), Cr.P.C. nor he produced any witness in his defence.

6. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing the Counsel for the parties, learned trial Court, vide impugned judgment, convicted and sentenced the appellant/accused as stated above. Against the said judgment, instant appeal has been preferred by the convicted accused.

7. I have heard learned Counsel for the parties and perused the material available on the record.

8. Learned Counsel for the appellant submitted that the accused has been falsely involved in the present case at the behest of one Qasim Naveed. According to him, in fact, the accused and his wife used to work at the house of said Qasim Naveed and on refusal of the accused he has been falsely implicated in the case. He further contended that no independent witness has been examined and the prosecution witnesses are police officials, as such, their evidence is not of worth-reliance. He further contended that there is also violation of section 103, Cr.P.C. as no private witness of the locality has been associated as mashir and both the mashirs are police officials. He further contended that the impugned judgment suffers from misreading and non-reading of evidence and that there are material contradictions in the evidence of prosecution witnesses. According to him, the impugned judgment is a non-speaking judgment and no sound reasons have been assigned by the trial Court for its findings. He, therefore, prayed that the appellant/accused may be acquitted of the charges.

9. Learned A.P.G. appearing for the State opposed the instant appeal. According to him, prosecution has succeeded in proving its case against the accused beyond reasonable shadow of doubt, as such, the accused has rightly been convicted by the trial Court. According to him, evidence of the police officials is also as good as the evidence of any other independent witness and their evidence cannot be discarded merely for the reason that they are police officials. He prayed for dismissal of the appeal and upholding the impugned judgment.

10. From the scrutiny of the evidence of prosecution witnesses and other material available on record, the prosecution story of departure from police station and then apprehending the accused and recovering the alleged weapon from his possession appears to be doubtful. P.W./Mashir PC Faiz Mohammad in his evidence deposed that they left police station on the day of incident at 1130 hours. Therefore, at 1230 hours they apprehended the accused at Wassi Malook Shah Chowk. According to him, the distance between the police station and the place of incident is about 8/9 kilometers. Besides, the complainant SIP Qamar Zaman in his evidence deposed that; "After patrolling various places, when we reached at Wassim Malook Shah Chowk, we saw one person was standing by the side of the Road." Thereafter, they arrested the accused at 1230 hours. Now, the police party had left the police station at 11.30 a.m. and they did not proceed towards the place of incident straightly but, according to complainant SIP Qamar Zaman, after leaving the police station they went to various places for the purpose of patrolling. It has also been admitted that the distance between police station and the place of incident is about 8/9 kilometers. In the circumstances, it is not possible for the police party to reach the place of incident within one hour of leaving from the police station; thus, doubt is created regarding departure of police party and then apprehension of the accused in the manner as stated by the prosecution witnesses.

11. It is also of worth-importance that the requirements of section 103, Cr.P.C. have not been fulfilled in its letter and spirit. The purpose of associating independent mashirs of the locality is to ensure transparency in the process of recovery. The trial Court in the impugned judgment has relied upon the provisions of section 34 of Sindh Arms Act, 2013 holding that by virtue of the said provision of law, application of section 103, Cr.P.C. has been excluded in the cases under the said Act of 2013. In this connection, it may be observed that the provisions of Section 34 of the Arms Act, 2013, do not expressly exclude the provisions of section 103, Cr.P.C. to be applied in the cases under the Sindh Arms Act, 2013, but it simply provides that besides private persons, police officials can also be associated as mashirs of recovery. In this connection, it would be advantageous to refer to the case of Shan v. The State reported in 2015 P.Cr.LJ 747 [Sindh] wherein it was held as under:- "

12. It is significant to mention that section 34 of Sindh Arms Act has not expressly excluded the provisions of section 103, Cr.P.C. But on the contrary, section 34 has provided a legal cover that police officials also can act as witnesses of recovery besides the private persons. The proviso to section to section 34 of Sindh Arms Act, provides that any police officer or present person present on the spot can be witness of search and recovery, therefore, it was prime duty of the police to prefer a private witness if available at the spot to maintain transparency and fairness of the alleged recovery. It is the prime duty of Courts to ensure during the course of the administration of justice that there must be a plausible explanation for non-association of witnesses from public."

12. In the above-cited judgment, reference was also made to a letter bearing No. J.P.32-R(S)/88-SCJ, dated 20th August, 1990 duly sent by learned Registrar of the Honourable Supreme Court of Pakistan to Inspectors General of Police of all the four provinces of Pakistan on the point of association of private witnesses in the process of recovery in criminal cases. It would be advantageous to reproduce hereunder the relevant portion of the said letter of the honourable Supreme Court, which reads as under:- "It has come to the notice of this Court that in a large number of criminal cases, the witnesses of recovery are from the police force and that the Police Officers concerned when appearing before the Court are often unable to give satisfactory explanation, why they failed to associate witnesses of the public in a case where the raid/recovery was planned well in advance. This Court has, therefore, directed that the requirement of associating non-officials witnesses in such cases should be impressed upon all concerned. (2) The Court has also directed in this context that the Courts should also examine two aspects of the issue in such cases. Is there a plausible explanation for not associating witnesses from the public; and whether some features of the cases in addition to ocular account given by the Police Officials support the prosecution version when denied by the defence. (3) It is suggested that the above orders of this Court should be brought to all concerned for strict compliance."

13. Reference was also made to the case of the State v. Bashir and others reported in PLD 1997 SC 408 wherein the apex Court has held as under:- "As regards above second submission of Mr. M.M Aqil, it may be observed that it has been repeatedly held that the requirements of section 103, Cr.P.C. namely, that two Members of the public of the locality should be Mashirs of the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public."

14. In view of aforesaid factual and legal position, the recovery of the alleged crime weapon from the accused/appellant has lost its evidentiary value.

15. In the instant case although, in order to justify non-association of private witnesses of the locality as envisaged under section 103, Cr.P.C, the complainant SIP Qamar Zaman as well as mashir PC Faiz Mohammad have stated in their respective evidence that private mashirs were not available at the place of incident; however, such their assertion has been belied by mashirnama of place of incident Ex.4/B dated 17.07.2014 wherein it has specifically been mentioned that at the place of incident there is frequent passage of public/private persons. Besides, it also mentions that on all the four sides of the place of incident, four different villages are situated. In this view of the matter, no plausible explanation has been offered by the complainant/prosecution as to why the efforts were not made to collect private mashirs from the inhabitants of the said four villages or from the private persons passing through near the place of incident.

16. Another discrepancy/legal flaw in the prosecution case is that although the Investigating Officer of the case namely P.W.3 ASI Akhtar Hussain in his deposition admitted that the case property viz. .30 bore T.T. Pistol was handed over to him by complainant ASI Qamar Zaman on 16.07.2014 along with FIR and mashirnama of arrest and recovery, despite that, as per his own admission, he sent the case property to Forensic Science Laboratory (FSL) on 18th July, 2014 i.e. after two days of its receipt from the complainant. No plausible explanation has come forward from prosecution side for such delay which creates doubt in the veracity and credibility of such recovery, so also the report of the ballistic expert, more particularly when the I.O. does not claim that he had deposited the alleged recovered weapon in the Malkhana during the intervening period. In the case reported as Samandar alias Qurban and others v. The State reported in 2017 MLD 539 Karachi, while dealing with the point of delay in sending the weapon to Ballistic Expert, this Court has held as under:- "Apart from above sending of crime weapon to ballistic expert for forensic report with delay of 20 days of their recovery also added further doubt into the prosecution case, thus in view of above coupled with non-compliance of section 103, Cr.P.C., it can safely be presumed that alleged recovery of crime weapon was not made from the possession of the appellants as alleged by the prosecution."

17. In the case reported as Yaqoob Shah v. The State (1995 SCMR 1293) the honourable Supreme Court has held that the report of the Fire-Arm Expert was of no avail to the prosecution as the crime empties and the fire-arms allegedly recovered from the accused were sent to Forensic Science Laboratory after delay. Reference in this respect may also be made to the decision reported as Ghulam Hussain and 2 others v. State (1998 PCr.LJ.779). In the circumstances, report of the ballistic expert, even if it may be in positive, would lose its sanctity.

18. It is also note-worthy that in the FSL Report while describing the weapons, it has been mentioned that; "One .30 bore Pistol No. Rubbed, with magazine and four 30 live cartridges as exhibits, now butt/body signed." However, neither in the FIR, nor in the evidence of complainant or mashir and even not in the charge framed by the trial Court, there is any mention that the allegedly recovered pistol was having rubbed number. On the other hand, it has been mentioned therein that, "Pak-made-Cal 7.6.3 MM .30 Bor" was written on the pistol which does not find mention in the FSL Report. This also creates suspicion as to whether the pistol allegedly sent to FSL by the I.O. was, in fact, the same pistol which was allegedly recovered from the possession of the accused or not?

19. It is also now well settled that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty is casted upon the accused to prove his innocence. It has also been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In the case reported as Wazir Mohammad v. The State (1992 SCMR 1134) it was held by honourable Supreme Court as under: "In the criminal trial whereas it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution."

20. In another case reported as Shamoon alias Shamma v. The State (1995 SCMR 1377) it was held by the honourable Supreme Court as under: "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case... ....Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise."

21. The accumulative effect of the above-said infirmities and legal flaws in the prosecution case is that the prosecution has not succeeded in discharging its obligation to prove the case beyond reasonable shadow of doubt. Needless to emphasize the well settled principle of law that if there creates any doubt in the prosecution case the benefit of which is to be extended to an accused as a matter of right but not as a matter of grace or concession. In the present case, there are many circumstances which create doubts in the prosecution case. Even an accused cannot be deprived of benefit of doubt merely because there is only one circumstance which creates doubt in the prosecution story. In the case reported as Tariq Pervaiz v. The State (1995 SCMR 1345), the Honourable Supreme Court has held as under:- "The concept of benefit of doubt to an accused is deep-rooted in our country. For giving him benefit of doubt, 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."

22. For the foregoing reasons, by a short order passed on 15.10.2019, instant appeal was allowed. Consequently, impugned judgment dated 30.07.2015 handed down by learned Additional Sessions Judge, Tando Mohammad Khan in Sessions Case No.37 of 2014 (re: The State v. Nazeer Ahmed) being outcome of FIR No.2512014 registered at P.S. Mullakatiar, under section 23(i) of Sindh Arms Act. 2013, was set aside and appellant Nazeer Ahmed, who was present on bail, was acquitted of the charges and his bail bond was cancelled and the surety furnished by him stood discharged. Above are the reasons for the said short order. SA/N-66/Sindh Appeal allowed.