2021 P Cr (PLP)

NAIMATULLAH PHULPOTO, J.

Appellant Mohammad Younis son of Bakhat Ali Chandio was tried by learned First Additional Sessions Judge/MCTC, Kamber, in Sessions Case No.239 of 2019, arising out of Crime No.175 of 2019, registered at Police Station Kamber City. On the conclusion of the trial, vide judgment dated 07.12.2019 the appellant was convicted for offence under section 24 of Sindh Arms Act, 2013 and sentenced to six years' R.I. and to pay fine of Rs.50,000/-. In case of default in the payment of fine, the appellant was directed to undergo S.I. for two years more. Appellant was extended benefit of section 382-B, Cr.P.C.

2. Brief facts of the prosecution case are that on 07.08.2019 SIP Attaullah Mirani was interrogating accused Mohammad Younis Chandio, who was in custody in Crime No.156/2019, registered at Police Station Kamber City, for offence under section 302, P.P.C., during interrogation appellant voluntarily prepared to produce crime weapon viz. T.T. Pistol and pursuant thereto he led the police party headed by Attaullah Mirani, PCs Asif Ali Chandio, Azhar Ali and others towards bank of Raj Wah bridge, Kamber-Rahooja. It is alleged that appellant by digging the earth, at Northern side took out the crime weapon viz., an unlicensed T.T. Pistol (number erased, Pakistani made) with magazine containing four live bullets at 1600 hours (5.00 p.m.) and handed over the same to I.O. SIP Attaullah Mirani, disclosing the same to be an unlicensed one, he secured the same in presence of mashirs, sealed, prepared such memo, obtained signatures of both mashirs. Thereafter brought the accused as well as secured crime weapon and bullets at P.S and lodged FIR against accused on behalf of State vide Crime No.175/2019, under section 24 of Sindh Arms Act, 2013.

3. After usual investigation, challan was submitted against the appellant/accused in this case under section 24 of Sindh Arms Act, 2013. Case was sent up to the Court of Session for trial.

4. Trial Court framed the charge against the accused, he pleaded 'not guilty' and claimed to be tried. At the trial, prosecution examined SIP Attaullah Mirani and PC Asif Ali Chandio. They produced the relevant record. Thereafter, prosecution side was closed.

5. Learned trial Court recorded statement of accused under section 342, Cr.P.C., in which he claimed false implication in the case and raised plea that pistol has been foisted upon him by the police. On the conclusion of the trial, appellant was convicted for offence under section 24 of Sindh Arms Act, 2013 and sentenced to six years' R.I., with fine of Rs.50,000/-, as stated above. Hence, this criminal jail appeal has been filed.

6. Learned advocate for the appellant mainly contended that according to the case of prosecution appellant during the interrogation in the murder case prepared to produce the crime weapon used by him in the commission of offence, but no statement/entry to that extent was lodged by the investigation officer at the police station; that it was day time, investigation officer had sufficient time to collect independent and respectable persons of the locality, but investigation officer failed to collect them without sufficient explanation; that place of recovery was bridge of Raj Wah and it was not in the exclusive possession of the appellant, but it was the place accessible to all. It is further submitted that complainant/ investigation officer had admitted that mashirnama of arrest, recovery and FIR were prepared by him, but handwriting of the mashirnama of arrest and recovery and the FIR show that the same are entirely different. It is also argued that the prosecution failed to prove safe custody and safe transmission of crime weapon used in the murder and evidence of the police officials required independent corroboration, which was lacking in the prosecution case. Lastly, it is submitted that the appellant has been acquitted in the main case Crime No.156/2019, under section 302, P.P.C. by the trial Court. It is prayed for acquittal of the appellant/accused.

7. Mr. Aitbar Ali Bullo, learned Deputy Prosecutor General, conceded to the contentions raised by learned advocate for the appellant, stating that handwriting on the mashirnama of arrest and recovery (Ex.03/B) and handwriting on the FIR (Ex.3/C) are different; inspite of that complainant/investigation officer SIP Attaullah Mirani (PW-1, Ex.03) in cross-examination admitted that all the documents were prepared by him. Learned DPG further submitted that appellant has been acquitted in the main case bearing Crime No.156/2019 of Police Station Kamber City. In the view of above, learned DPG did not support the impugned judgment.

8. The facts of this case as well as evidence produced before the trial Court find the elaborate mention in the impugned judgment passed by the trial Court dated 07.12.2019, hence the same need not to be repeated here so as to avoid duplication and unnecessary repetition.

9. I have carefully heard the learned Counsel for the parties and perused the relevant record. I have come to the conclusion that prosecution failed to prove its case against the appellant, for the reasons that according to the case of prosecution, appellant during interrogation in Crime No.156/2019, registered at P.S Kamber City, for offence under section 302, P.P.C., prepared to produce the crime weapon used by him in the commission of the offence. Investigation officer had to make such entry/statement, to that extent before leaving the police station, but it was not done by him. It was daytime incident, investigation officer had also failed to call independent and respectable persons of the locality to witness the recovery proceedings. Place of recovery was also an open place and accessible to the all. Complainant/ investigation officer in his evidence at Ex.03 no where has deposed that after recovery of the pistol he sealed it in presence of the mashirs and he deposited it at the "Malkhana" of the police station. Learned advocate for the appellant has rightly argued that handwriting on the mashirnama of arrest and recovery and the FIR were of different persons. This fact is conceded by the learned DPG, but complainant/investigation officer in his cross-examination has admitted that mashirnama of arrest and recovery as well as the FIR were prepared by him. It is the matter of the record that appellant has been acquitted in the main case bearing Crime No.156/2019 by the learned 1st Additional Sessions Judge, Kamber vide judgment dated 03.10.2020. It has come on record that pistol allegedly recovered on the pointation of the accused was used in the commission of the murder, but prosecution utterly failed to prove before the trial Court evidence with regard to the safe custody and safe transmission. Neither entry of the "Malkhana" of the police station was produced before the trial Court nor incharge of the "Malkhana" was examined. Reference in this context may be made to the case of Kamal Din alias Kamala v. The State (2018 SCMR 577), wherein the honourable apex Court has held as under:- "

4. As regards the alleged recovery of a Kalashnikov from the appellant's custody during the investigation and its subsequent matching with some crime-empties secured from the place of occurrence suffice it to observe that Muhammad Athar Farooq DSP/SDPO (PW18), the Investigating Officer, had divulged before the trial Court that the recoveries relied upon in this case had been affected by Ayub, Inspector in an earlier case and, thus, the said recoveries had no relevance to the criminal case in hand. Apart from that safe custody of the recovered weapon and its safe transmission to the Forensic Science Laboratory had never been proved by the prosecution before the trial Court through production of any witness concerned with such custody and transmission."

10. Moreover, positive report of the Ballistic Expert as Ex.3/E reflects that pistol was deposited by SDPO Kamber, but said SDPO was also not examined before the trial Court. Accused in his statement recorded under section 342, Cr.P.C. has claimed false implication in this case and stated that pistol has been foisted upon him. In these circumstances, the description of the pistol was essential to have been recorded in the mashirnama. Moreover, prosecution failed to produce some independent piece of evidence for the purpose of corroboration of the evidence of the prosecution witnesses, which is based solely on the evidence of the police officials. No doubt, evidence of the police officials cannot be discarded simply because they belong to police force. Where, however, the fate of the accused persons hinges upon the testimony of police officials alone, it is necessary to find out if there was any possibility of securing independent persons at the time. It would be unsafe to rely upon the evidence of the police officials without independent corroboration. Judicial approach has to be cautious in dealing with such evidence, as held in the case of Saifullah v. The State (1992 MLD 984 Karachi). Relevant portion is reproduced as under:- "

8. The evidence of police officials cannot be discarded simply because they belong to police force. In Qasim and others v. The State reported in PLD 1967 Kar. 233, it was held: "A police officer is as good a witness as any other person. The standard of judging his evidence is the same on which the evidence of any other witness is judged." However, in a case of this nature where the fate of an accused person hinges upon the testimony of police officials alone, it is necessary to find out if there was any possibility of securing independent persons at that time. Judicial approach has to be cautious in dealing with such evidence."

11. In my considered view, prosecution has failed to prove its case against the appellant. Circumstances mentioned above have created reasonable doubt in the prosecution case. Moreover, trial Court in the murder case, has already disbelieved the testimony of same police officials with regard to recovery of weapon. It is settled law that it is not necessary that there should be many circumstances creating doubts. If there is single 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. In this regard, reliance can be placed upon the case of Muhammad Mansha v. The State (2018 SCMR 772), wherein the honourable Supreme Court has observed as follows:- "

4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)."

12. In view of what has been discussed above, I have no hesitation to hold that the prosecution has failed to prove its case against the appellant. Keeping in view the above facts and circumstances, the appeal was allowed by me vide short order dated 29.10.2020, whereby the conviction and sentence recorded by the trial Court vide impugned judgment dated 07.12.2019 passed by the learned First Additional Sessions Judge/MCTC, Kamber, in Sessions Case No.239 of 2019 were set aside and appellant Mohammad Younis son of Bakhat Ali Chandio was acquitted of the charge. Above are the detailed reasons of such short order. JK/M-217/Sindh Appeal allowed.