2017 PLP 2025 (MLD)

SALAHUDDIN PANHWAR, J.

Instant Revision Application has been filed by applicant Muhammad Hassan Mahar against the judgment dated 13th June, 2009 passed by the learned II-Additional Sessions Judge, Shikarpur in Crl. Appeal No.14/2005, whereby the judgment of conviction dated 11.6.2005 passed by learned Civil Judge and Judicial Magistrate, Lakhi Ghulam Shah was maintained and the appeal filed by the applicant was dismissed.

2. The necessary facts forming the background of instant revision application are that on 03.9.1999 SHO Fida Hussain Gopang lodged FIR bearing Crime No.70/1999 at P.S Chak, stating therein that during course of interrogation of Crime No.63/1999 of same police station under sections 302, 147, 148, 149, 34, P.P.C. the arrested accused Muhammad Hassan confessed the guilt and prepared to produce the pistol, used in commission of murder of deceased Javed, concealed beneath earth in between two Khabar Trees on backside of Govt. High School, Chak, in the graveyard of Pir Yousif Ali. On such disclosure, complainant accompanying the accused and his subordinate staff, namely Constable Lohar Khan and Constable Abdul Wahid proceeded from police station on foot vide roznamcha entry No.20 dated 30.9.1999 at 6.20 p.m; from the way he also took private mashirs namely Pehlwan and Nazi. The accused, having led them, produced T.T Pistol which, on checking, found empty but with smell of fire shot. The accused further disclosed that T.T. Pistol was unlicensed which was sealed under mashirnama.

3. Trial Court framed charge against the appellant, to which he pleaded 'not guilty' and claimed trial. To substantiate the charge prosecution examined mashir Pehlwan and complainant Inspector Fida Hussain Gopang.

4. Statement of accused under Section 342, Cr.P.C. was recorded, in which he pleaded that he was innocent and the weapon was foisted upon him by the police. He, however, neither examined himself on oath, nor led any evidence in defence.

5. The learned trial Court on conclusion of trial held the applicant guilty of offence under Section 13(e) Arms Ordinance and vide judgment dated 11.6.2005 convicted and sentenced him to undergo R.I. for three years with fine of Rs.10,000/-, in default whereof to undergo S.I. for six months more. Applicant filed appeal being Criminal Appeal No.14/2005 against the judgment of the trial Court, which was dismissed by the learned II-Additional Sessions Judge, Shikarpur vide judgment dated 13.6.2009.

6. At the outset, learned counsel for the applicant has contended that station diary, under which the complainant claimed to have proceeded to the place of recovery, was not produced by him at trial. He further contended that the mashirs of recovery were arranged by the complainant of main murder case, who are closely related to the complainant, which is not disputed; there are contradictions in the evidence of complainant and mashir of recovery on material points and the pistol has been foisted upon the appellant with a view to strengthen the main case; appellant was arrested on 22.8.1999, whereas recovery of crime weapon was made on 03.9.1999 i.e. after the delay of about 12/13 days and that too was not made from the exclusive possession of the appellant, hence such recovery is of no consequence in the eyes of law.

7. Conversely, learned D.P.G supported the impugned judgment and contended that appellant Muhammad Hassan Mahar led the police party to the recovery of crime weapon and in presence of private mashirs he voluntarily produced the crime weapon viz. Pistol from the place, where he had concealed the same; complainant and mashir have fully supported the prosecution case, the appeal of the applicant was rightly dismissed, hence the instant criminal revision application is without merit and liable to be dismissed.

8. It is a case where the two competent court(s) below have affirmed the 'guilt' of applicant/convict hence to succeed in a revision the applicant has to establish prima facie illegality resulting into some injustice. Before proceeding further, I would like to take a Note of Article 40 of Qanun-e-Shahadat Order, 1984 because facts of the instant case require so. A disclosure by an arrested accused resulting into discovery of any fact falls within meaning of the Article 40 of Qanun-e-Shahadat Order, 1984 and has been given status of 'admissibility' by the law itself. However, a discovery of fact with reference to such Article would require the prosecution to prove i) information or statement by an accused under custody with regard to discovery of some fact and ii) discovery of some fact in result of such information or statement. Before seeking application of this Article the prosecution would require to establish co-existence of said two conditions. In absence of information or statement, disclosing discovery of some fact, the discovery of fact alone would not permit the prosecution to insist for application of the Article. However, such discovery shall not become futile for this count alone but the prosecution would be required to prove the same through ordinary legal modes i.e. direct or circumstantial evidence. The case of Askar Jan v. Muhammad Daud (2010, SCMR 1604) is sufficient to shoulder such view.

9. In the instant case to prove the discovery in result of the information/statement of the applicant/convict, the prosecution in relied upon evidence of P.W Inspector Fida Hussain, the complainant in this case and P.W Pehlwan, who is mashir. Worth to add that evidence of these witnesses were found confidence inspiring and sufficient by two courts below to believe the case of prosecution case.

10. The complainant Inspector Fida Hussain Gopang in his evidence has deposed that on 03.9.1999 he was SHO Police Station Chak and on the same date he interrogated the accused Muhammad Hassan in Crime No.63/1999 under section 302, P.P.C. who volunteered to produce a Pistol, used in crime, and so also he admitted that he has committed murder of deceased Javed Ahmed. According to complainant the accused led him to Pir Yousif Shah graveyard near High School. The complainant has further stated that he took private persons namely Pehlwan and Nazir Ahmed and at 1845 hours they reached at place of recovery wherefrom accused took out a T.T Pistol, wrapped in Plastic Thelhi, which was lying in Khabbar tree in the graveyard. The accused failed to produce license. He prepared mashirnama. He also sealed the Pistol and obtained signatures from the mashirs on spot.

11. P.W Pehlwan, who is mashir of recovery of pistol, has deposed that on 03.9.1999 at about 0620 hours, he alongwith Nazir came near High School Chak, where SHO Fida Hussain Gopang alongwith two constables and accused Muhammad Hassan met with them and asked them to act as mashir of recovery of Pistol. According to him they agreed to act as mashir and accused produced an unlicenced Pistol before police which was used by him in commission of murder of Javed Hussain. He has further deposed that the SHO prepared mashirnama of recovery on spot.

12. From the perusal of the evidence of the complainant, it is surfaced that there was a statement of disclosure by the applicant/convict so as to produce the crime weapon which the applicant/convict materialized by leading and producing the same from a particular place. The mashir Pehalwan strengthened the statement of the complainant on all material points. These witnesses were subjected to cross-examination by the learned counsel for the defence but defence prima facie failed to get any material contradiction from them. The term material contradiction is not a failure of mere test of memory of witness but it should hit the material point (s) of prosecution case resulting into trembling the structure of prosecution.

13. The mashir Pehlwan is a private person and accused has failed to prove any ill will or enmity of complainant and mashir Pehlwan with him. The mere words or suggestions that the mashir is an arranged and set-up is not sufficient but a plea of witness being inter se related would not stand well if defence fails to bring on record reasons justifying such a witness to falsely depose against the accused which the defence prima facie failed. The recovery of Pistol, used in commission of murder of Javed Ahmed, has been proved from a particular place at the pointation of the applicant/convict which in law is admissible hence plea of recovery from such place is of no help for the applicant/convict in peculiar facts leading to such recovery. Moreover, there appears no major material contradiction or legal infirmity in prosecution evidence. The recovery of unlicensed Pistol is proved from the accused in a manner which is described by the prosecution. Besides this, defence has failed to point out any illegality or material departure on part of the two court (s) below from a procedure which could justify miscarriage or failure of justice.

14. Under the facts and circumstances, as discussed above, I am of a view that the Judgment passed by learned trial Court as well appellate court is based upon proper appreciation of evidence and is backed with cogent reasons which do not warrant any interference by this Court. Accordingly, the instant revision petition merits no consideration, which is hereby dismissed, as such. HBT/M-39/Sindh Petition dismissed.