2019 P Cr (PLP)

ABDUL MAALIK GADDI, J.

Appellant Zeeshan Ali was tried by the Court of learned IInd Additional Sessions Judge, Karachi (Central), in Sessions Case No.1196 of 2015, re. The State v. Zeeshan Ali, arising out of Crime No.165 of 2015 registered at Police Station Paposh Nagar, Karachi, under section 23(1)(a) of Sindh Arms Act, 2013. By judgment dated 29.05.2017, the appellant was convicted under section 265-H(ii), Cr.P.C. for an offence under section 25 of Sindh Arms Act, 2013 and sentenced him to suffer R.I. for three years with fine of Rs.10,000/-; in default of payment of fine, it was further ordered that appellant shall suffer undergo S.I. for one month more. However, the benefit of section 382-B, Cr.P.C. was also extended to the appellant.

2. The brief facts of the prosecution case leading to the filing of this appeal are that on 27.09.2015 at about 2335 hours at Abdullah College Chowrangi, Paposh Nagar, Nizamabad, Karachi, the above named accused was arrested in Crime No.164 of 2015 registered at Police Station Paposh Nagar, under sections 392/34, P.P.C., headed by SIP Muhammad Ishaque and one unlicensed Pistol of .30 bore along with magazine containing three live rounds without number were recovered from the possession of appellant in presence of mashirs and then he along with case property was brought at police station. Hence, this case.

3. The charge was framed on 20.11.2015 at Ex.2 against the accused by the learned trial Court, to which he pleaded not guilty and claimed to be tried.

4. At trial, in order to establish accusation against appellant/ accused, prosecution had examined following witnesses:- (i) PW-1/complainant ASI Muhammad Ishaque at Ex.3, who produced mashirnama of arrest and recovery, entry No.24 for lodging of FIR, Carbon copy of FIR, entry No.25 for lodging another FIR at Ex.3/A to Ex.3/D respectively; (ii) PW-2 private witness Ali Hyder at Ex.4, who produced mashirnama of inspection of place of incident at Ex.4/A, (iii) PW-3 Investigating Officer SI Muhammad Aslam at Ex.5, who produced departure entry No.8, arrival entry No.10, letter to incharge FSL and its report, letter to incharge finger print and photo at Ex.5/A to Ex.5/E respectively. These witnesses were cross-examined by the counsel for the appellant. Thereafter, learned ADPP closed the prosecution side vide Statement at Ex.6.

5. Statement of appellant was recorded under section 342, Cr.P.C. at Ex.7, in which he has denied the allegations as levelled by the prosecution by stating that he is innocent and nothing was recovered from him. He further stated that the motorcycle of the victim Ali Hyder was collided with his motorcycle due to which the victim and his companions maltreated him and brought at police station where they got him involved in this false case. However, accused neither examined himself on Oath nor led any evidence in his defence.

6. Mr. Ali Asghar Awan, learned counsel for the appellant has argued that the appellant is innocent and has been falsely implicated by the police; that the alleged recovery of pistol and bullets have been foisted upon him. Per learned counsel, the evidence so brought on record by the prosecution witnesses in this case is contradictory in nature to each other on material particulars of the case. During the course of arguments, learned counsel for appellant has taken to me to the evidence of prosecution witnesses and highlighted the number of contradictions in between the statements of prosecution witnesses, therefore, according to him, on the basis of contradictory evidence, conviction could not be maintained. Per learned counsel, the present appellant has been acquitted in main case being Crime No.164 of 2015 registered at Police Station Paposh Nagar, Karachi, under section 392/34, P.P.C., by the trial Court vide judgment dated 26.02.2018 in which mashirnama of arrest and recovery was same, therefore, the appellant may also be acquitted in this case.

7. Mr. Sagheer Abbasi, learned Assistant Prosecutor General, Sindh for the State while supporting the impugned judgment argued that the prosecution has fully established its case against the appellant beyond reasonable doubt by producing consistent/convincing and reliable evidence and the conviction and sentence awarded to the appellant is the result of proper appreciation of evidence brought on record, which needs no interference. He further argued that the appellant was arrested on spot and one unlicensed .30 bore pistol along with magazine containing 03 live rounds without number was recovered from his possession, which was in working condition, therefore, he is not entitled for any relief.

8. I have given my anxious thoughts to the contentions raised at the bar and have gone through the case papers so made available before me.

9. After careful consideration and meticulous examination of the available record, suffice to say that mere heinous nature of offence is not sufficient to convict the accused because the accused continues with presumption of innocence until found otherwise at the end of the trial. It is the settled principle of law that burden is always upon the prosecution to prove the case beyond shadow of doubt. Keeping in view of this basic touchstone of criminal administration of justice, I have examined the ocular evidence as well as circumstantial evidence, along with impugned judgment.

10. From the perusal of record, I have come to the conclusion that the prosecution has failed to prove its' case against the appellant for the reasons that as per prosecution story, the appellant was arrested by the police in Crime No.164 of 2015 registered at Police Station Paposh Nagar Nazimabad, Karachi under section 392/34, P.P.C., and allegedly recovered one unlicensed .30 bore pistol along with loaded magazine with three rounds without number alongwith two Q-mobiles with SIM No.0315-1350272, one Nokia mobile without SIM and Rs.4000/- from his possession in presence of mashirs namely Ali Haider and Abdul Jabbar and joint mashirnama of arrest and recovery was prepared on the spot in both Crimes Nos.164 and 165 of 2015, but the learned trial Court on the basis of same mashirnama of arrest and recovery has acquitted the appellant in the main case being Crime No.164 of 2015 vide Judgment dated 26.02.2018. The said judgment has not been challenged by the prosecution before any appellate Forum, as such, the said judgment has attained finality. This aspect of the case creates doubt in the prosecution case. Not only this, as per FIR at Ex.3/C, one unlicensed 30 bore pistol along with loaded magazine with three rounds without number allegedly recovered from the possession of the appellant, but in the memo of arrest and recovery at Ex.3/A, one unlicensed .30 bore pistol along with loaded magazine with three rounds without number body of which 'CAL 30 Mouser made as China by Norinco' was written, which is quite different. The said description is also not mentioned in the FSL report at Ex.5/D on record.

11. I have also gone through the evidence of prosecution witnesses so made available on record and found the same is contradictory on material particulars of the case to each other. For instance, as per FIR at Ex.3/C, one unlicensed 30 bore pistol along with loaded magazine with three rounds without number along with two Q-mobiles with SIM No.0315-1350272, one Nokia mobile without SIM and Rs.4000/- were allegedly recovered from the possession of appellant, while contradicting this fact, PW Ali Hyder, who is also complainant in main case being Crime No.164 of 2015, in his cross-examination at Ex.4 deposed that no incriminating material was recovered from the possession of the appellant in his presence. For the sake of convenience, it would be appropriate to reproduce the relevant portion of his cross-examination, which reads as under:- "It is correct that the police had not recovered any incriminating article from the possession of accused in our presence." From the perusal of above piece of evidence, it appears that complainant had not supported the version of prosecution story as stated in FIR, which creates a dent in the prosecution case. Thus, false implication of the appellant in this case with due deliberation and consultation could not be ruled out. I have also gone through the evidence of complainant Muhammad Ishaque at Ex.3. On perusal of his evidence, it appears that his evidence is not in line of the memo of arrest and recovery available on record at Ex.3/A. He in his cross-examination deposed that during search of the appellant, he did not recovered any incriminating article from his possession. For the sake of convenience, it would be proper to reproduce the relevant portion of his cross-examination, which reads as under:- "It is correct that during personal search of accused I had not recovered any incriminating article from his possession. It is correct that complainant of main case Ali Haider had brought the pistol with him and disclosed to have recovered from the possession of accused. It is correct that pistol was not recovered from the possession of accused in my presence. It is correct that I had not recorded statements of neighbours who came along with the complainant at P.S. It is correct that I had not obtained signatures of any neighbours on mashirnama of arrest and recovery. It is correct that I cannot say if the weapon and other articles were recovered from the possession of present accused or not as they were produced by the complainant of main case before me." After going through the above piece of evidence, it is reveals that this witness has also not supported the version of prosecution story, which also creates doubt in the prosecution case.

12. Furthermore, it is mentioned in the FIR at Ex.3/C that the alleged weapon allegedly recovered from the appellant was without number, but FSL report available on record at Ex.5/D showing that alleged weapon was rubbed number. No official from Forensic Division has been examined in this case. Therefore, under the circumstances, no reliance could safely be placed on FSL report for conviction of the appellant on the basis of contradictory evidence. When all these aspects of the case and contradictions in the evidence of prosecution witnesses were confronted to learned Assistant Prosecutor General, Sindh, he had no answer with him.

13. Admittedly, in this case, there are number of infirmities/lacunas, which have created serious doubt in the prosecution case. It is settled principle of law that for extending benefit of doubt, it is not necessary that there should be multiple circumstances creating doubt. If a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in the case of Tariq Pervez v. The State reported as 1993 SCMR 1345, wherein the Hon'ble Supreme Court has held as under:- "The concept of benefit of doubt to an accused persons is deep-rooted in our country for giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a 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."

14. For the above stated reasons, while respectfully relying upon the above cited case law, I have no hesitation to hold that prosecution has failed to prove it's case against the appellant beyond any shadow of reasonable doubt. Consequently, Appeal is allowed, conviction and sentence awarded by the trial Court vide judgment dated 29.05.2017 are set-aside. Appellant is present on bail, his bail bond is cancelled and surety stands discharged. SA/Z-6/Sindh Appeal allowed.