2022 PLP 76 (YLRN)

KHADIM HUSSAIN M. SHAIKH, J.

This appeal is directed against judgment dated 02.09.2016, passed by Vth Additional Sessions Judge, Larkana in Sessions Case No. 512 of 2014, re-State v. Imran Umrani, emanating from Crime No. 99 of 2014, registered at Police Station Taluka, Larkana, whereby the appellant has been convicted for offence punishable under Section 24 of Sindh Arms Act, 2013 and sentenced to undergo R.I. for seven (07) years and to pay fine of Rs.50000/- (rupees fifty thousand only), and in default in payment of fine to further undergo S.I. for six months. However, benefit of Section 382-B, Cr.P.C. has been extended to the appellant.

2. Briefly, the facts of the case are that on 23 7 2014, complainant SIP Ali Hassan Abro of Police Station Taluka, Larkana, lodged the FIR of this case at Police Station Taluka Larkana, stating therein that on that date at about 1200 hours under roznamcha entry No.18 he took out accused Imran Umrani from lockup of the police station, who was already in custody under remand in case Crime No.94 of 2014 under Sections 302, 114, 148, 149, P.P.C. and started interrogation in presence of mashirs, namely, Balouch Khan and Asghar Ali. It is alleged that during interrogation, the accused agreed to produce the alleged pistol, disclosing that he had concealed it in a polythene shopping bag near wall of primary school situated in his village; at 1210 hours under Entry No.19 the complainant along with above-named mashirs, his subordinate staff and the accused left police station in a private car and went to the pointed place, where the accused is alleged to have produced an unlicensed pistol wrapped in a black colour polythene shopping bag by digging earth near the school wall, which was secured and sealed at the spot under the mashirnama of arrest and recovery in presence of the above mashirs. Thereafter, the accused and the property were brought at police station, Taluka Larkana, where the complainant lodged the subject FIR on behalf of the State. After investigation, the accused ["the appellant"] was sent up with the challan to face his trial.

3. A formal charge was framed against the appellant at Ex.2, to which he pleaded not guilty' and claimed to be tried.

4. To prove the case prosecution examined PW-1 mashir Balouch Khan at Ex.4, who produced mashirnama of arrest and recovery at Ex.4-A; PW-2 complainant SIP Ali Hassan at Ex.5, who produced entry No.18, attested copy of mashirnama of arrest and recovery, FIR and mashirnama of place of incident at Exs.5-A to 5-D respectively and thereafter the prosecution closed its side vide statement at Ex.6.

5. The statement of appellant Imran Umrani under Section 342, Cr.P.C. was recorded at Ex.7, wherein he denying the allegations professed his innocence and false implication in this case and prayed for justice. He, however, neither examined himself on oath, nor did he examine any defence evidence.

6. The learned trial Court vide impugned judgment dated 02.09.2016 convicted and sentenced the appellant, as discussed in paragraph-1 supra, hence this appeal.

7. Learned advocate for the appellant has mainly contended that the appellant is innocent and he has been falsely implicated by the police in this offshoot case at the instance of complainant party of the main case Crime No. 94 of 2014 registered at Police Station Taluka, Larkana, emanating offence under Sections 302, 114, 148, 149, P.P.C. by foisting upon him the alleged pistol to strengthen the main case; that no independent person was cited as witness or mashir and both the mashirs cited by the police are mashirs in the main case and relatives of the complainant; that prosecution has failed to prove its case against the appellant beyond a reasonable doubt; and, that the appellant has been acquitted in the aforesaid main case Crime No.94 of 2014. Learned Counsel, therefore, prays for acquittal of the appellant.

8. Learned Addl. Prosecutor General has supported the impugned judgment and prayed for dismissal of the appeal.

9. I have considered the submissions made by the learned advocate for the appellant, learned Addl. P.G. for the State, and have gone through the material brought on the record with the assistance of the learned Addl. P.G.

10. From a perusal of the record it would be seen that this is an offshoot case of the main case based on Crime No.94 of 2014 registered at Police Station Taluka, Larkana; the alleged place of recovery is near a wall of the school located in village Haji Khan Umrani, which being an open place was accessible to everyone and was not in exclusive possession of the appellant; the appellant was arrested in the main case on 17.7.2014 and on 23.7.2014 i.e. after 06 days of his remaining in custody, the alleged recovery of the pistol was shown to have been made; there is no expert opinion about the working condition of alleged weapon, as was asserted by the learned Addl. P.G. on a query, per him, the alleged weapon was not sent to the Ballistics Expert to ascertain its working condition and use thereof in the main case Crime No.94 of 2014 and has further conceded that the appellant has been acquitted in the aforesaid main case by the learned trial court. Some case property was shown to be present in the Court, but it was not de-sealed and as to what was the property it is not mentioned in the depositions of the PWs; on 08.08.2016 the Advocate for the accused was shown called absent and the accused in person had cross-examined the PWs by putting some immaterial and innocent questions and thus the accused was unrepresented at the time of recording of evidence of the PWs as is evident from the deposition of PW-2 Complainant SIP Ali Hassan Abro Ex.05 available at pages-25-26 of the paper book; it needs no reiteration that cross-examination of an accused himself is not a substitute of cross-examination by a counsel, who being professionally skilled touches all the aspects of the case while cross-examining the witness that could not be done by the accused being layman, if it was all necessary to proceed with the matter on that day, the learned trial Court was under obligation to intervene into the matter and to ask some material questions from the witnesses to ascertain truth in the allegations against accused as the trial court was obliged to take into consideration the entire material placed before it in arriving at the conclusion whether a fact was proved or not, because proof of a fact depends upon the probability of its having existed and not upon the accuracy of the statement; Complainant SIP Ali Hassan (PW-2) has stated that on 23.7.2014 he was posted as SIO at Police Station Taluka. On the same date in Crime No.94 of 2014, under Sections 302, 114, 148, 149, P.P.C. of Police Station Taluka he conducted interrogation from accused Imran, who was already arrested at police lockup of Police Station Taluka in presence of mashirs Asghar Ali and Baloch Khan Shar, and accused Imran allegedly agreed to produce the pistol, used in the commission of the offence. Thereafter, on the same day, PW-2 Complainant Ali Hassan along with PC Hakim, Ali, PC Oshaque Ali and private mashirs Asghar Ali and Baloch Khan Shar left Police Station vide entry No.19, at 1210 hours in a private car and went Village Haji Khan Umrani near Primary School Haji Khan Umrani, where the accused stopped the car and dug out the pistol and handed over it to him and whereas PW-1 Mashir Balouch Khan has stated that "On 23.7.2014 SIP Ali Hassan Abro called me and co-mashir Asghar Ali at Police Station Taluka and I along with co-mashir, SIP and other police staff and already arrested accused Imran went to village of accused namely Haji Khan Umrani and accused Imran led police party and us near primary school and after digging earth produced one plastic shopper containing one pistol of 30-bore along with magazine to I.O., who sealed the same on spot." The said PW-1 did not state a single word about interrogation of the accused by the PW-2 Complainant SIP Ali Hassan and his agreeing to produce the alleged crime weapon, in his presence and in presence of his co-mashir Asghar Ali; PW-2 Complainant SIP Ali Hassan has stated that "the pistol does not bear any serial number. Serial number has been rubbed; I have not exhibited the working certificate of the crime weapon. I have not examined any private person as mashir; while PW-1 Mashir Balouch Khan has stated that "I do not remember at what time the mashirnama was prepared. I am also mashir in the main homicide case. I cannot tell whether any serial number was written on it; PW-1 Complainant SIP Ali Hassan has deposed that "On the same date at 1500 hours I along with same private mashirs went to the place of incident, where I prepared mashirnama of place of incident in presence of the same mashirs and obtained their signatures on it, but PW-1 Mashir Balouch Khan did not utter a single word about his going to the place of incident along-with complainant SIP Ali Hassan and co-mashir and preparation of mashirnama of place of incident in their presence as alleged by the PW-2 Complainant SIP Ali Hassan; no sincere effort is shown to have been made by the complainant SIP Ali Hassan to associate any private person to the alleged proceedings either from the Larkana city or from village Haji Khan Umrani wherefrom near Primary School the recovery of alleged unlicensed pistol was shown to have been made; the driver of the private vehicle in which the police party went to the pointed place was not cited as witness or mashir and even material particulars viz. name of the driver of the private car and number etc. thereof are not mentioned anywhere in the mashirnama of arrest and recovery and/or in the FIR; a perusal of the impugned judgment dated 02.09.2016 reveals that the aforesaid material discrepancies, glaring contradictions, material infirmities. omissions and admissions adverse to the prosecution case, which did go to the root of the case, rendering it doubtful, were not at all attended to by the learned trial Court, while passing the impugned judgment dated 02.09.2016, convicting and sentencing the appellant, although the benefit of doubt, if any arising in the prosecution case is to be extended to the accused not as a matter of grace, but as a matter of right; and, thus the impugned judgment, which suffers from misreading and non-reading of the evidence, and the conviction and sentence awarded to the appellant vide impugned judgment, in my humble view, cannot sustain. Reliance in this context can be placed on the case of Muhammad Akram v. The State (2009 SCMR 230), wherein Hon'ble Supreme Court of Pakistan has held that: "It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which create reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."

11. In view of what has been stated above, I am of the considered view that the prosecution has failed to prove its case against the appellant beyond a reasonable doubt, therefore, the appeal deserves to be allowed. These are the reasons of short order announced by me on 19.08.2019, whereby the conviction and sentence awarded to the appellant vide impugned judgment dated 02.09.2016 were set aside and the appellant was directed to be released forthwith if his custody was not required in any other case. JK/I-20/Sindh Appeal allowed.