2022 PLP 95 (YLRN)

KHADIM HUSSAIN M. SHAIKH, J.

This criminal jail appeal is directed against the judgment dated 28.03.2019, passed by the learned Additional Sessions Judge-II, Kamber in Sessions Case No.386 of 2017 re-State v. Abdul Sattar Bouk, culminated from Crime No.123 of 2017, registered at Police Station Wagan, District Kamber-Shahdadkot, whereby the appellant was convicted for offence punishable under Section 23(i)(a) of Sindh Arms Act, 2013 and sentenced for four (04) years R.I. and also fine of Rs.50,000/- (rupees fifty thousand only), and in default in payment of fine to further undergo R.I. for six months.

2. Briefly, the facts of the case are that on 07.11.2017, at about 1600 hours complainant ASI Ghulam Akbar Bhatti of Police Station Wagan, was on patrol duty along with his subordinate staff, namely, PC Ghulam Mustafa and PC Shahzado, in a police mobile, which was driven by the DPC Abdul Jabbar Siyal, for the purpose of arresting absconders within jurisdiction of Police Station Wagan. When they reached near Raj Wah, situated on the road leading from Lalu Raunk towards Warah, they received spy information that one wanted and proclaimed offender accused in Crime No.22 of 2014 of Police Station Wagan, for offence under Sections 302, 324, 337-H(2), 148, 149, P.P.C., namely, Abdul Sattar Bouk was available at Jara Wah bridge and he was waiting there for some transport. Per FIR, on receipt of such information, they reached at the pointed place at about 1700 hours and noticed that same person was available there, who on seeing them tried to slip, but was apprehended. On inquiry said person disclosed his name as Abdul Sattar son of Ghulam Mustafa Bouk resident of Village Jiand Junejo, Taluka Warah. On his personal search one pistol of 30-bore loaded with one magazine containing five live bullets was recovered from right side fold of his trouser, which he disclosed to be unlicensed; further two currency notes of Rs.100/- each were also recovered from him. The recovered weapon was sealed at the spot and such mashirnama attested by mashirs PC Ghulam Mustafa and PC Shahzado was prepared and then the accused along with recovered property was taken to police station, where the complainant registered the FIR of this case against the accused on behalf of the State. After investigation, police sent up the appellant with the challan to face his trial.

3. A formal charge was framed against the appellant at Ex.2, to which he pleaded 'not guilty' and claimed to be tried.

4. To prove the case, prosecution examined PVV-1 complainant ASI Ghulam Akbar Bhatti at Ex.3, who produced roznamcha entry No.13, FIR, mashirnama of arrest and recovery and mashirnama place of incident at Ex,3/A to 3/D respectively. The prosecution also examined mashir PC Ghulam Mustafa as PW-2 at Ex.4. The FSL report was produced by the learned Prosecutor through his statement and thereafter the prosecution closed its side vide statement at Ex.6.

5. Statement of accused Abdul Sattar Bouk ['the appellant'] under Section 342, Cr.P.C. was recorded at Ex.7, wherein he denied the allegations and professed his innocence. He, however, neither examined himself on oath, nor did he adduce any defence evidence.

6. Trial Court vide impugned judgment dated 28.03.2019 convicted and sentenced the appellant, as discussed in paragraph-1 supra.

7. Appellant Abdul Sattar Bouk, who is present in person, submits that he is innocent and nothing was recovered from him; that he was actually arrested by Gebidero Police, who handed over his custody to the police of Police Station Wagan, where the pistol and bullets were foisted upon him by the police in league with the complainant of main case Crime No.22 of 2014 of Police Station Wagan, for offence under Sections 302, 324, 337-H(2), 148, 149, P.P.C.

8. Mr. Ali Anwar Kandhro. Learned Additional Prosecutor General, after going through the entire evidence does not support the impugned judgment.

9. I have carefully considered the submissions of the appellant and the learned Addl. Prosecutor General for the State, and have gone through the record.

10. From a perusal of the record it would be seen that the police party headed by complainant ASI Ghulam Akbar incharge P.P. Lalu Raunk of Police Station Wagan while on patrolling duty, on a tip-off, went to the pointed place near Jara Wah on road leading from Lalu Raunk to Warah, but no independent person was associated with the alleged recovery proceedings. On a query, learned Addl. P.G. has conceded that from the place, where spy information was received by the police i.e. Raj Wah, to the place of recovery there are several villages and shops, petrol pumps on both sides of the road. The learned Addl. P.G has further conceded that no effort was made by the police party to associate an independent person to the alleged recovery proceedings; in FIR and mashirnama of arrest of appellant Abdul Sattar and recovery of the pistol and live bullets, it is stated that the recovered pistol and live bullets were sealed at the spot, but complainant ASI Ghulam Akbar has not stated about sealing of the alleged recovered pistol and bullets at the spot and whereas PW-2 mashir PC Ghulam Mustafa has stated that the recovered pistol and live bullets were sealed at the spot; complainant ASI Ghulam Akbar and mashir PC Ghulam Mustafa both have admitted that the place where they had received spy information was busy area, from where so many vehicles were crossing at that time and while going towards the place of incident they had also crossed from Lalu Raunk city, but they had not associated any private person. PW-1 complainant ASI Ghulam Akbar has stated in cross-examination that he had received spy information at about 1630 hours regarding availability of wanted accused; complainant has admitted that at Jara Wah there was also one police picket, but no person from that police picket was associated with the proceedings. PW complainant ASI Ghulam Akbar has stated in cross-examination that "Fall Wah was situated at the distance of about 2-1/2 kilometers away from PP Lalu Raunk and the distance between the Fall Picket and Raj Wah was about 2 to 3 kilometers" and whereas PW mashir PC Ghulam Mustafa Mugheri has stated that "The distance between Fall Picket and Jara Wah was about 12 kilometers and the distance between P.P. Lalu Raunk and the place of arrest was about 8 to 10 kilometers." PW complainant ASI Ghulam Akbar has stated that "We had spotted the accused from distance of 15 to 20 paces." and whereas PW mashir PC Ghulam Mustafa Mugheri has stated that "I had spotted the accused from the distance of 4 to 5 paces from me." PW complainant ASI Ghulam Akbar has stated that "We had consumed about 20 to 25 minutes at the place of incident, during which we had completed all the formalities there." and whereas PW mashir PC Ghulam Mustafa Mugheri has stated that "We had consumed about one hour at the place of incident." PW complainant ASI Ghulam Akbar has stated that "when we returned at the police station, I had kept one entry and then registered the FIR. At present I do not remember the number of such entry and then registered the FIR. I do not remember the number of such entry; the FIR was written by WHC. I handed over the case property to the WHC Gulzar Ali Memon under proper procedure; I have not produced any receipt; I had sent the recovered property to the FSL for examination through process server, who was deputed for this purpose; I do not remember the name of concerned process server; I had sent five live bullets to FSL Laboratory and the property produced in Court shows five live bullets and one empty casing." and whereas PW mashir PC Ghulam Mustafa Mugheri has admitted that "the place where we had received information was a busy road, where so many vehicles were crossing at that time; while going to the place of incident we had crossed from the busy areas, but ASI Ghulam Akbar had not associated any private person to act as mashir." Apart from the above material and glaring contradictions, infirmities, improvements and admissions, adverse to the prosecution, rendering the prosecution case doubtful, there are many other material discrepancies in the prosecution case, which need not to be discussed just to save the space and the same were not at all attended to by the learned trial Court while passing the impugned judgment 28.03.2019, convicting and sentencing the appellant, as discussed supra, although the benefit of doubt, if any, arising in the prosecution case is to be extended to the accused not as a matter of grace but as a matter of right; and, thus the impugned judgment suffers from misreading and non-reading of the evidence, which is not sustainable. Reliance in this context can be placed on the case of Muhammad Akram v. The State (2009 SCMR 230), wherein Hon'ble Supreme Court of Pakistan has held that: "It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."

11. In view of what has been stated above, I am of the considered view that the prosecution has failed to prove its case against the appellant beyond a reasonable doubt. Accordingly, the instant appeal is allowed, the conviction and sentence awarded to the appellant vide impugned judgment dated 28.03.2019 passed by learned Additional Sessions Judge-II, Kamber is set aside and the appellant is acquitted of the charge. He is present on bail. His bail bonds are cancelled and surety, discharged. SA/A-99/Sindh Appeal allowed.