2021 PLP 803 (MLD)

MUHAMMAD SALEEM JESSAR, J.

Through this criminal revision application, the applicant has challenged the judgment dated 21.11.2013 handed down by teamed 1st Additional Sessions Judge, Dadu in Criminal Appeal No.25 of 2013 which was dismissed and judgment passed by trial Court in Criminal Case No.249 of 2012 (Re-The State v. Ahmed Jamali) being outcome of FIR No.129 of 2012 P.S A-Section, Dadu under Section 13(d) of Arms Ordinance, 1965 was maintained.

2. The crux of the prosecution case as unfolded by complainant in his FIR are that the police party headed by ASI Muhammad Ameen Vighio was on patrolling duty in the jurisdiction and when they reached near railway ponds, they saw a person who on seeing the police party attempted to flee away but was apprehended and on his body search one 32 bore Revolver was recovered from his possession along with two bullets. On demand he failed to produce any valid license; hence, memo of arrest and recovery was prepared by complainant at the spot. Later, he and property were brought at police station where case was registered against him on behalf of State. 3 After due investigation, the challan of the case was filed. After taking cognizance, the trial Court framed charge against the applicant at Ex.2, to which he pleaded not guilty and claimed to be tried.

4. To prove its charge, prosecution examined PW-1 PC Abdul Hakeem Panhwar at Ex.3 and complainant ASI Muhammad Ameen Vigio at Ex.4, who produced the departure entry and FIR at Ex.4/A and 4/B. Later the side of prosecution was closed. The statement of accused under Section 342, Cr.P.C. was recorded by the trial Court where he simply denied the allegations leveled against him; however, he did not produce any witness in his defence nor examined himself on oath in terms of Section 340(2), Cr.P.C.

5. After hearing the parties, learned trial Court found the appellant guilty of the charge; hence, convicted him under Section 245(2), Cr.P.C. and sentenced him to undergo R.I for 02 years and imposed fine of Rs.10,000/-. In case of default in payment of fine, he was further directed to undergo S.I for 02 months more; however, with benefit of Section 382-B, Cr.P.C.

6. The applicant preferred appeal before first Appellate forum where his appeal was also dismissed; however, the impugned judgment was modified and quantum of sentence of 02 years was reduced to one year as well fine amount was also reduced from Rs.10,000/- to Rs.5000/-. Hence, this criminal revision application has been filed.

7. Learned Counsel for the applicant submits that applicant was arrested by the police from his house and thereafter the police made demand of huge amount of illegal gratification, which was refused by him; therefore, the complainant became annoyed and by taking somer-saulalt implicated him in this false case by foisting the weapon upon him. He further submits that complainant himself has conducted the investigation and PW examined before the trial Court was his subordinate; therefore, the evidence being bias cannot be taken into consideration to maintain the conviction against the applicant. He further submits that the Courts below have committed irregularity by awarding the conviction against the applicant as the legal position was not discussed by the Courts below; therefore, the applicant has preferred instant criminal revision application for indulgence of this Court. He further submits that weapon was not sealed at the spot nor was sent to the Ballistic Expert for its examination whether it was in working condition or otherwise. He; therefore, prays for grant of instant criminal revision application and setting aside the impugned judgments of the Courts below and further prays that the applicant may be acquitted of the charge. In support of his contention, he has placed reliance upon the case of Muhmamad Riaz v. The State (2009 MLD 976).

8. On the other hand, learned D.P.G. opposes the criminal revision application and supports the impugned judgments passed by the Courts below.

9. I have heard learned Counsel for the parties and perused the material made available before me on record.

10. Admittedly, the police party headed by ASI Muhammad Ameen Vighio was on patrolling duty when they found the applicant along with alleged weapon and subsequently they booked him in this crime. However, the complainant himself acted as Investigating Officer; therefore, such investigation cannot be termed to be impartial as one cannot go against his own action and that the PW was subordinate to him. No doubt the evidence of police officials is as good as that of other public witness but when a person was going to be charged then it was incumbent upon the police officer to associate an independent person to maintain the fairness of the offence alleged to have been made against the applicant. Moreover, the weapon allegedly recovered from the possession of the applicant was not sealed at the spot in presence of the mashirs nor was sent to the Ballistic Expert for satisfaction whether the weapon in question was functional or otherwise. Even the said weapon was not confronted to the applicant at the time of recording his statement under Section 342, Cr.P.C. In case of Muhammad Riaz (supra), the learned Bench of this Court while allowing the criminal revision application has observed in following terms:- "Weapon allegedly recovered from possession of accused in consequence of search, neither was sealed in presence of Mashir nor was sent to Ballistic Expert for certification to the effect that same was functional or otherwise. Such weapon, even during trial, neither was described nor its details were given and evidence to the extent that weapon lying in the Court was the same had come on record. Such a situation had rendered case against accused to be doubtful. Investigating Officer who was S.H.O. of Police Station concerned, had acted as a prosecutor, investigator and a witness in respect of the proceedings against the accused. Prosecution evidence being not sufficient to sustain conviction of accused, conviction and sentence awarded to accused, were set aside and the accused was acquitted of the charge."

11. One more glaring feature of the prosecution case is that the applicant was not given an opportunity to bring his Counsel and at the time of recording evidence he himself conducted the cross; therefore, he being a layman and having no knowledge of law was ignorant of legal knowhow; therefore, could not ask material question to ascertain the truth behind the screen. Resultantly he was deprived of his right to defend; thus, was not given opportunity of being heard which is / was his right. Hence, he was condemned unheard. This aspect of the case also supports the version of the applicant to the effect and extent that he has not been allowed fair opportunity of being heard, which is clear violation of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. In this respect, reliance can be placed upon the case of Muhammad Bashir v. The State (PLD 2008 Supreme Court 160).

12. In view of what has been discussed above, I am of the humble opinion that the case against the applicant is not free from doubts; therefore, the conviction and sentence awarded to him by the trial Court as well maintained by the Appellate Court are liable to be set aside. Accordingly, instant criminal revision application is hereby allowed. The impugned judgments dated 28.06.2013 and 21.11.2013 passed by the two Courts below are hereby set aside. Applicant is hereby acquitted of the charge. He is present before the Court on bail, his bail bond stands cancelled and surety discharged. SA/A-38/Sindh Application allowed.