2022 PLP 61 (YLRN)

KHADIM HUSSAIN M. SHAIKH, J.

This criminal jail appeal is directed against the judgment dated 15.10.2015, passed by the learned IInd Additional Sessions Judge, Jacobabad in Sessions Case No.397 of 2012 re-State v. Raheel Buledi, culminated from Crime No.26 of 2012, registered at Police Station Garhi Khairo, District Jacobabad, whereby the appellant was convicted for offence punishable under section 13(d), Arms Ordinance and sentenced to suffer R.I. for seven (07) years, with fine of Rs.20,000/- (rupees twenty thousand only), and in default in payment of fine he was to further undergo S.I. for six months.

2. Briefly, the facts of the case are that on 04.09.2012, at about 1700 hours complainant SIP Khalid Hussain Sarki of P.S Garhi Hassan apprehended accused Raheel Buledi and recovered an unlicensed KK of mini size with magazine, containing three live bullets of 7.62 bore. Such mashirnama was prepared in presence of mashirs HC Azizullah Shah and PC Sharbat Ali and then the accused ('the appellant') along with recovered property was brought at Police Station Garhi Khairo, where SIP Khalid Hussain Sarki lodged the FIR of this case against the accused on behalf of the State. After the investigation, police sent up the appellant 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 complainant SIP Khalid Hussain at Ex.5, who produced copy of memo of arrest and recovery at Ex.5-A, copy of departure and arrival entries at Ex.5-B, copy of FIR at Ex.5-C and copy of Forensic Science Laboratory report at Ex.5-D. The prosecution also examined mashir retired HC Azizullah Shah at Ex.6 and thereafter closed its side vide statement at Ex.7.

5. Statement of appellant Raheel Buledi under section 342, Cr.P.C. was recorded at Ex.8, wherein he denied the allegations and professed his innocence. He, however, neither examined himself on oath, nor did he examine any person as his defence witness.

6. The learned trial Court vide impugned judgment dated 15.10.2015 convicted and sentenced the appellant, as discussed in paragraph-1 supra. The appellant then preferred this criminal jail appeal.

7. The learned advocate for the appellant has mainly contended that the appellant is innocent and nothing was recovered from him; that the alleged K.K with three live bullets was foisted upon the appellant by the police; that there are material contradictions in the evidence of prosecution witnesses; and, that the prosecution has failed to prove its case beyond reasonable doubt. The learned Counsel prays that the appeal may be allowed and the appellant may be acquitted of the charge.

8. The Learned Additional Prosecutor General, after going through the entire evidence does not support the impugned judgment, contending that the learned trial Court without proper evaluation of the evidence has passed the impugned judgment, convicting and sentencing the appellant, per him, there are material contradictions in the evidence led by the prosecution.

9. I have carefully considered the submissions of the learned counsel for the appellant and the learned Addl. Prosecutor General for the State, and have gone through the record.

10. From a perusal of the record it would be seen that no independent person was cited as witness or mashir despite the fact the police party on patrolling allegedly received spy information in Main Bazar of Garhi Khairo Town and from the place of information to the place of arrest of accused and recovery, namely, near Degree College, Garhi Khairo the entire area is a thickly populated area and no sincere effort is shown to have been made by the police to associate any independent person from the locality to the alleged recovery proceedings; the property was produced in Court at the time of examination of both the P.Ws, but whether that property was in sealed condition or otherwise and as to what was the property, particulars whereof are not mentioned in the depositions: PW-1 SIP Khalid Hussain Sarki in cross-examination has stated that "there is distance of about one kilometer between the police station and place of recovery and there is populated area between police station and place of recovery; I arrested the accused within the range of 5/10 paces to me; I consumed about 30 minutes in the process of arrest, recovery and preparing the memo," and whereas PW-2 HC Azizullah Shah has stated that "after leaving PS we went to Main Bazar of Garhi Khairo; SIP/SHO Khalid Sarki received spy information in the Main Bazar of Garhi Khairo, which is populated area; no private person was engaged by SIP/SHO Khalid Sarki for acting as mashir; there is distance of about 02 furlongs between the Main Bazar of Garhi Khairo and the place of occurrence; we stopped police mobile at the distance of about 15/20 paces away from the accused when we saw him; we stayed for about 20 minutes at Degree College." The learned trial Court disbelieving the prosecution case has acquitted the appellant of the charge in the main case Crime No.25 of 2012, registered at P.S Garhi Khairo, for offence under section 302, P.P.C. the Forensic Science Expert report has been produced at Ex.5/D, but the same was not confronted to the appellant in his statement under section 342, Cr.P.C., which could not be used against the appellant. Apart from the above material and glaring contradictions, infirmities, dishonest and deliberate improvements and admissions adverse to the prosecution, rendering the prosecution case doubtful, there are many other material discrepancies in the prosecution case, which need not to be discussed here just to save the space, but the same were not at all attended to by the learned trial Court while passing the impugned judgment 15.10.2015, convicting and sentencing the appellant, as discussed supra, 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 suffers from misreading and non-reading of the evidence, which is not sustainable. 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 created 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. For these reasons, the instant appeal was allowed by me through short order announced on 25.10.2019, and the conviction and sentence awarded to the appellant vide impugned judgment dated 15.10.2015 passed by learned IInd Additional Sessions Judge, Jacobabad were set aside and the appellant was acquitted of the charge. JK/R-26/Sindh Appeal allowed.