2013 PLP 30 (YLR)

NAIMATULLAH PHULPOTO, J.

This appeal has been filed by the appellant to impugn judgment dated 20-1-2011 delivered by learned Additional Sessions Judge (Hudood) Sukkur, whereby appellant was convicted under section 13(d) Arms Ordinance, 1965 and sentenced to one year R.I. and to pay fine of Rs.5,000, in case of default in payment of fine he was ordered to undergo S.I. for one month more. Appellant was extended benefit of section 382-B, Cr.P.C.

2. Brief facts of the prosecution case are that on 13-1-2010, Masood Rasool, SPO City Sukkur left office along with his subordinate staff for patrolling. At about 0300 hours police party reached at city point Sukkur, where SPO received spy information on mobile phone that notorious dacoit Imam Bux alias Imoo alongwith his companions was going to Shah Belo from Bagirji. On such information, police parties of police stations Abad and "A" Section, Sukkur were called in aid and proceeded to general bus stop. It is alleged that police party held Nakabandi at Jaffer Abad at 7-00 a.m. and noticed that five armed persons were coming from Bagirji side, the police party challenged them but accused persons started firing upon the police party with intention to kill, the police party also fired in self defence. The encounter lasted for 10 minutes, thereafter, Masood Rasool, SPO apprehended appellant/accused Imam Bux along with one Kalashnikov and 25 live bullets, such mushirnama was prepared in presence of mushirs, namely, SIP Abdul Jabbar Mahar, SIP Abdul Malik Kamangar. Thereafter, appellant alongwith KK was brought to the police station, Abad where two cases were registered against the appellant and others. One F.I.R. was registered under sections 324/354 P.P.C. Another F.I.R. Crime No.7/2010, Police Station Abad, under 13(d) Arms Ordinance, 1965 was registered against appellant. Thereafter, challan was submitted in both the cases. Both cases were exclusively triable by Court of Session and were sent up. In the present case, charge was framed against the appellant under section 13(d) Arms Ordinance, 1965. The appellant met the charge with denial and the prosecution examined SPO/complainant Masood Rasool, Exh.6, he produced mashirnama of arrest and recovery of the KK and bullets as Exh.6-A, F.I.R. under section 13(d) A.O., lodged by Inspector Haji Masood Rasool as Exh.6-B, P.W.2 Mashir SIP Abdul Jabbar as Exh.7, P.W.3 SIO Abdul Majeed Arain Exh.8. He produced mashirnama of the place of vardat, Exh.8-A. Thereafter, prosecution side was closed.

3. The statement of the appellant was recorded by the trial Court under section 342, Cr.P.C. at Exh. 10, in which the accused has claimed his false implication in this case and denied the recovery of K.K. from his possession and stated that police officials are interested and K.K. has been foisted upon him. The appellant did not lead defence and declined to give statement on oath in disproof of prosecution allegation.

4. On the conclusion of the trial, after hearing both the parties, learned Additional Sessions Judge (Hudood) Sukkur vide judgment dated 20-1-2011 convicted and sentenced the appellant/accused Imam Bux alias Imoo as mentioned above. Thereafter, jail appeal has been preferred.

5. Mr. Shabbir Ahmad Bozdar, learned counsel for the appellant contended that on the same mushirnama in one case bearing Crime No.06 of 2010 under sections 324/354/148/149, P.P.C. the appellant and others have been acquitted and on the same mashirnama the appellant has been convicted under section 13(d) Arms Ordinance. Trial Court has not appreciated the evidence properly. He has further argued that the appellant was in the custody of the police before the registration of the case, such application was submitted by the relatives of the appellant under section 491, Cr.P.C. before the High Court on 6-1-2012 but the police with ulterior motive booked the appellant in two cases on 13-1-2010. It is also argued that during the investigation the Investigating Officer had failed to send the Kalashnikov and empties to the Ballistic Expert for the report. Learned Defence Counsel further argued that arrival and departure entries have not been produced by the prosecution at the trial. The prosecution story is unbelievable and unnatural. Prosecution has failed to prove the case against the appellant and prayed for acquittal of the accused.

6. Mr. Mohan Lal, D.D.P.P. for the State argued that the evidence of the police officials is as good that as of any other person. Joint mashirnama has not caused any prejudice to the appellant. The trial Court has rightly convicted the accused on the basis of cogent and confidence inspiring evidence. He has supported the impugned judgment.

7. I have carefully heard the learned counsel for both the parties and scanned the entire evidence available on record.

8. I have come to the conclusion that the prosecution has failed to prove its case against the appellant/accused for the reasons that two cases were registered against the appellant and others, one Case bearing No.6 of 2010 under sections 324/ 354/148/149, P.P.C. and another Case bearing No.7 of 2010 under section 13(d) of the Arms Ordinance, 1965, joint mashirnama was prepared in presence of the mashirs, both the cases were tried and decided by the same Court. The learned trial Court disbelieved the prosecution evidence in one case and more or less on the same evidence of prosecution witnesses, convicted appellant without assigning sound reasons. Learned defence counsel rightly contended that K.K. recovered from accused having neither been sealed at spot nor sent to the Ballistic Expert along with empties for examination and report as such prosecution case was highly doubtful. Lapse on the part of the police is clear and admitted. Wisdom behind sealing the weapons at the place of incident is to eliminate the possibility of manipulation of evidence after the recovery of the crime weapons. Sealing of weapons is essential, particularly in cases when it is alleged that weapon was used in the commission of crime and empties were secured from the vardat. In this case, K.K. was used in commission of offence and recovered from the possession of the accused/appellant, 10 empties of SMG were collected from the place of vardat. In such situation, K.K. and empties were to be sent to the Ballistic Expert for examination and report so as to connect the appellant in the commission of crime. It has been rightly contended by the learned defence counsel that in this case weapon and empties were not sealed and possibility could not be excluded regarding tampering with said piece of evidence. In order to avoid possibility of manipulation, this Court has always insisted that property should be sealed at the place of vardat so as to discard any possibility of manipulation or tampering with prosecution evidence. Unfortunately, this exercise has not been completed in this case, nor reasons have been assigned for such omission. The prosecution could not satisfy the Court about such omission. According to the defence plea, the appellant was in custody of the police before registration of the case but such plea has been disbelieved by the trial Court without assigning cogent reason. No doubt, police officials as citizen are as good witnesses in Court proceedings as any other person yet, some amount of care is needed when they are only eye-witnesses in the case. It is not on account of an inherent defect in their testimony but due to a possibility that an individual police official and not all, might in mistaken zeal to see that the person he believes to be a culprit, is convicted, might blur line between duty and propriety. It is the settled law that in the exercise of appreciation of evidence it is necessary as prerequisite, to see whether witness in question is not such an overzealous witness. In this case, on the spy information nakabandi was held, police officials had sufficient time to call independent and respectable persons of locality to make them mashirs in this case but it has not been done. Their testimony appears to be unnatural and untrustworthy, particularly in the background of the enmity alleged with the police officials. Prosecution was also required to have produced before the trial Court arrival and departure entries for the satisfaction of the Court but prosecution has no reply for such omission. All these factors create doubt in the prosecution case. Prosecution has to prove its case against the accused beyond reasonable doubt, in this case there are several circumstances, which create doubt in the prosecution case.

9. For my above stated reasons I have come to the conclusion that prosecution case, as to veracity and credibility of prosecution witnesses, is full of doubts, its benefit must be extended to appellant. Consequently, appeal is allowed. Conviction and sentence dated 20-1-2011 are set aside. Appellant is acquitted of the charge. He shall be released forthwith, if no more required in other custody case. These are the reasons for the short order announced on 31st August, 2012 in the open Court. MWA/I-18/K Appeal allowed.