2020 P Cr (PLP)

MUHAMMAD SALEEM JESSAR, J.

This criminal revision is directed against the judgment dated 19.08.2011, handed down by learned IIIrd Additional Sessions Judge, Dadu, Camp at Central Prison, Hyderabad, in Cr. Appeal No.14 of 2010 Re: Shakeel Ahmed v. The State and impugned judgment dated 22.03.2010, delivered by learned Judicial Magistrate, Dadu in Cr. Case No.94/2009 Re, The State v. Shakeel Ahmed, arising out of Crime No.201/2004 of Police Station Dadu, under section 13(e), Arms Ordinance, 1965, whereby the applicant Shakeel Ahmed was convicted and sentenced under section 13(e), Arms Ordinance, to suffer R.I. for three years and to pay fine of Rs.5000/- and in case of default in payment of fine, to suffer further S.I. for three months.

2. Facts in brief giving rise to the prosecution case are that, on 20.10.2004, complainant SIP Syed Noor Muhammad Shah, registered case on behalf of the State with Police Station Dadu, alleging therein that accused Shakeel Ahmed was arrested in Crime No. 197/2004 Police Station Dadu. On the day of incident, the complainant along with his subordinate PC Munir Ahmed, mashirs Rashid Hussain and Muhammad Haroon took out accused Shakeel Ahmed from police lock up of Police Station Dadu for investigation of crime weapon used in commission of the offence. During course of investigation, the accused confessed his guilt and showed willingness to produce the same and further disclosed that he hide the crime weapon viz. gun in his house. On his such admission, the complainant along with his subordinate staff, mashirs and accused, proceeded towards the pointed place, wherefrom the accused took out SBBL gun from a box lying in the room of his house used in commission of the offence and further disclosed that it is the same gun with which he committed murder of Mst. Subhan Khatoon, the same was taken into possession by the-police and police noted its number to be 30674 Pak made of 12 bore of Shaheen company and such mashirnama of recovery was prepared by the complainant in presence of mashirs Rashid Hussain and Muhammad Haroon. Thereafter, police brought the accused and recovered property at police station, where complainant lodged the FIR on behalf of the State in the terms stated above.

3. The learned trial court supplied the case papers to the appellant vide receipt as Ex.1 and a formal charge as Ex.2 has been framed against the appellant, to which he pleaded not guilty and claimed for the trial vide plea as Ex.2-A.

4. The prosecution in order to prove its case examined PW-1/complainant SIP Syed Noor Muhammad Shah at Ex.5, who produced mashirnama of recovery at Ex.5-A and F.I.R. at Ex.5-B, PW-2 Rashid Hussain at Ex.6. The property clerk Muhammad Umer of Sessions Court was examined at Ex.4, in respect of case property which was burnt in the incident of 27.12.2007, who produced photo stat copy of FIR No. 11/2008 at Ex.4-A and certificate at Ex.4-B and then learned P.I. for State closed the prosecution side vide statement as Ex.7.

5. The statement of the accused was recorded under section 342, Cr.P.C. at Ex.9, in which he claimed false implication; however, he did not examine himself on oath under section 340(2), Cr.P.C. nor led evidence in his defence.

6. The trial court, after hearing learned counsel for the parties and going through the record, convicted the accused under section 245(ii), Cr.P.C., and sentenced him as above vide Judgment dated 22.3.2010 passed by Judicial Magistrate, Dadu. The appellant assailed the said Judgment before IIIrd Additional Sessions Judge, Dadu, Camp at Central Prison, Hyderabad, who after hearing to either side has dismissed the appeal. Hence this appeal with prayer for setting aside the above two impugned Judgments passed by Courts below.

7. Learned counsel for the appellant submitted that the appellant is innocent and has been falsely implicated in the instant case as well as in the main case i.e. Crime No.197/2004 registered at Police Station Dadu under section 302, P.P.C., on account of enmity between the parties. Learned counsel submitted that the appellant has been acquitted in the main case and, per learned counsel, since the appellant has been exonerated in the main case he is entitled to be acquitted in this case also, which is off shoot of the main case. He submitted that the impugned judgments are result of non-reading and misreading of evidence on record and are liable to be set aside. He also referred to the judgment passed by a learned single Judge of this Court in Criminal Appeal No. S-13 of 2007, whereby the appellant was acquitted in the main case, and submitted that there are numerous contradictions in the evidence of the prosecution and, therefore, the impugned judgments are not sustainable in law.

8. Conversely, learned DPG fully supported the impugned judgment and stated the recovery of the weapon used in the crime was made at the pointation of the appellant and the witnesses have fully implicated the appellant in the offence. He prayed for dismissal of the instant Criminal Revision Application and maintaining of the conviction and sentence awarded to the appellant.

9. I have heard learned counsel for the appellant and learned DPG and have perused the record.

10. A perusal of the judgment passed in the main case i.e. Criminal Appeal No. S-13 of 2007, reveals that the learned single Judge of this Court, while allowing the said criminal appeal and acquitting the appellant of the charge of murder of Mst. Subhan Khatoon, did not believe the ocular evidence and also observed that the medical evidence is in conflict with the ocular evidence and, relying on the case of Bagh Ali v. State (1983 SCMR 1292) and the case of Muhammad Aslam v. State (1969 SCMR 462), held that it is settled principle of law that in case of conflict between ocular evidence and medical evidence, the medical evidence is to be preferred. It would be advantageous if the relevant para of the judgment dated 27.8.2013 passed in Criminal Appeal No. S-13 of 2017 (hereinafter referred to as "the Judgment in Appeal") is reproduced hereunder: "Apart from above, the medical evidence also does not help in specifying the weapon used for causing injury to the deceased. Complainant and both the alleged eye-witnesses throughout in evidence deposed that the accused had fired with his gun at their house and one pellet hit to the deceased whereas medical evidence/report clearly show that deceased had sustained one firearm injury on right parietal region measuring 0.5 cm in diameter with inverted margins went through and through. The I.O. of the case SIP Noor Muhammad Shah (PW-7) in his evidence has disclosed 31 paces distance between the house of accused and the place of wardat (house of complainant). The skull is most hardest place [part] of the human body and the discharge of pellet from a distance of 31 paces could hardly be passed from it. Dr. Najma in her cross-examination has clearly deposed that deceased had sustained bullet injury. In addition to that, it is the case of prosecution that complainant and his wife/deceased were looking at the accused, who opened fire towards them which allegedly hit to the deceased. If fire was made in front of deceased it would have caused injury on the forehead or on frontal aspect and not right or left side of the body, as such, the ocular evidence does not coincide with the findings in medical evidence and is directly in conflict with it, which also creates serious doubt in the prosecution case. It is a settled principle of law that in case of conflict with ocular and medical evidence the medical evidence is to be preferred. In this regard reference may be made to the case of Bagh Ali v. State (1983 SCMR 129) and Muhammad Aslam (1969 SCMR 462).

11. Since instant criminal revision is not in respect of murder case of the deceased Mst. Subhan Khatoon, rather it is in respect of recovery of unlicensed fire arm from the applicant Shakeel Ahmed, therefore, I would confine myself to that part of the evidence which is relevant for the purpose of this revision application.

12. A perusal of the FIR and the facts narrated in the impugned Judgments reveal that the allegation against the applicant was that he was standing over the roof of his house and was making firing towards the house of the complainant, pallets thereof hit the iron gate of the complainant and one pallet hit the head of complainant's wife Mst. Subhan Khatoon. In this regard it would be pertinent to note that complainant and both the alleged eye-witnesses throughout in evidence deposed that the accused had fired with his gun at their house and one pellet hit the deceased whereas as per the deposition of Dr. Najma, the deceased had sustained bullet injury. Therefore, there is conflict between ocular evidence and medical evidence with regard to weapon used in the crime. In this view of the matter the recovery of gun from the applicant becomes doubtful.

13. As per statement of the I.O., SIP Noor Muhammad Shah, the applicant, while he was being interrogated, confessed his guilt and showed his willingness to produce the crime weapon which he produced from his house. However, this version of the prosecution is belied by the fact that the applicant did not confess his guilt, on the contrary, he denied his involvement in the said case and alleged false implication on account of enmity with the complainant party. He was tried and was acquitted of the charge of murder vide the Judgment in Appeal. In the main case the applicant also examined himself on oath and denied all the allegations. He also produced evidence in his defense. This belies the story of the I.O. that the applicant confessed his guilt and voluntarily produced the crime weapon. Even otherwise, the medical evidence does not prove that the weapon allegedly produced by the applicant was used in the crime. It has also come on record (in the Judgment in Appeal) that only one empty cartridge was recovered from the roof of the house of the applicant while allegation against the applicant was that he fired many shots from his roof top at the house of the complainant. Therefore, recovery of only one cartridge from the roof of the applicant's house creates doubt in the prosecution case as there is no explanation as to what happened to other cartridges. It has also been observed by learned single Judge in the Judgment in appeal that "as per medical evidence mentioned hereinabove the deceased had sustained bullet injury, therefore, recovery of empty of .12 bore cartridge creates doubt connecting the accused with the commission of the crime." This further causes dent in the prosecution case.

14. Now, I will take up the most important aspect of the case and that is with regard to production of the weapon before the trial Court as well as before the ballistic expert. In the impugned judgments it has been stated that the alleged recovered weapon was stolen or burnt in the riots/mob attacks in the aftermath of the incident in which a former Prime Minister of Pakistan lost her life on 27th December, 2007. This was a short coming on the part of the prosecution as it was the duty of the prosecution to prove its case beyond any reasonable doubt. When the alleged unlicensed weapon itself was not produced before the trial Court, it caused a dent in the prosecution case. It was the duty of the prosecution to connect the applicant with the alleged crime weapon allegedly recovered from the house of the applicant and then to connect the crime weapon with the crime itself. For this purpose, a trustworthy report from the ballistic expert, connecting the recovered weapon with the alleged crime, was necessary. However, neither the crime weapon was produced before the trial Court on the pretext that the same was lost/burnt in the riots as stated above nor a trustworthy ballistic expert's report is available on record due to above illegalities as admittedly the alleged recovered weapon was sent to ballistic expert after delay of about four months.

15. It has also come on record that the alleged crime weapon was sent to ballistic expert for his report after more than four months of its recovery and for which there is no explanation as to why it was sent so late to the ballistic expert and whether it had been kept in safe custody during the intervening period. In the case reported as Samandar alias Qurban and others v. The State reported in 2017 MLD 539 Karachi, while dealing with the point of delay in sending the weapon to Ballistic Expert, this Court held as under: "Apart from above sending of crime weapon to ballistic expert for forensic report with delay of 20 days of their recovery also added further doubt into the prosecution case, thus in view of above coupled with non-compliance of section 103, Cr.P.C., it can safely be presumed that alleged recovery of crime weapon was not made from the possession of the appellants as alleged by the prosecution."

16. In the case reported as Yaqoob Shah v. The State (1995 SCMR 1293) Honourable Supreme Court held that the report of the Fire-Arm Expert was of no avail to the prosecution as the crime empties and the fire-arms allegedly recovered from the accused were sent to Forensic Science Laboratory after delay."

17. In view of the above, there is no trustworthy report of the ballistic expert to connect the alleged recovered weapon with the crime and, therefore, it cannot be said that the same weapon was used in the crime.

18. In the present case, the main allegation against the applicant was that of the murder of Mst. Subhan Khatoon, wife of the complainant, while recovery of the unlicensed weapon was an off shoot of the above main crime. Once the applicant has been acquitted of the charge of murder of Mst. Subhan Khatoon vide the Judgment in Appeal, in which he was alleged to have used the said weapon, the off shoot case of recovery of the weapon also becomes doubtful. Reliance can be placed upon the case of Riaz Husain Kalhoro v. The State (2004 PCr.LJ 290). This is more so due to conflict in the ocular and medical evidence, as discussed above.

19. Vide order dated 03.05.2019, for detailed reasons to be recorded later on, instant Cr. Jail Revision Application was allowed and the impugned judgment dated 19.08.2011, handed down by learned IIIrd Additional Sessions Judge, Dadu, Camp at Central Prison, Hyderabad, in Cr. Appeal No.14 of 2010 Re: Shakeel Ahmed v. The State and impugned judgment dated 22.03.2010, delivered by learned Judicial Magistrate/Civil/Family Judge, Dadu in Cr. Case No.94/2009 Re, The State v. Shakeel Ahmed, arising out of Crime No.201/2004 of Police Station Dadu, under section 13(e), Arms Ordinance, 1965, were set aside. Consequently, the applicant Shakeel Ahmed was acquitted of the charge under section 13(e), Arms Ordinance. His bail bonds were cancelled and surety was discharged.

20. Above are the reasons for the short order dated 03.05.2019. SA/S-114/Sindh Revision accepted.