' HASAN FEROZ, J.---This judgment will dispose of above Criminal Revision Application moved on behalf of applicant/accused named-above who being aggrieved of the judgment dated 5-8-2013 as passed by learned 1st Additional Sessions Judge Mirpurkhas in Criminal Appeal No.7 of 2012 has impugned the legality and propriety of judgments inter alia on the grounds taken in the revision application, with the prayer to set aside the judgment in Criminal Appeal No.7 of 2013 in Crime No.76/2011 and so also the judgment of conviction as passed by learned Civil Judge and Judicial Magistrate-II Mirpurkhas in Criminal Case No. 138/2011 whereby the applicant/accused was convicted and sentenced to undergo R.I. For two years and to pay fine of Rs.2,000 and in default of payment of fine amount, to suffer S.I. For three days more, however, benefit of section 382-B, Cr.P.C.
Was extended to them.
2. Facts giving rise to the filing of instant criminal revisional application are that the applicant/accused was tried for offence under section 13(d), Arms Ordinance, 1965, lodged on behalf of State by A.S.I. Imam Ali Shar of Police Station Phulladiyoon according to which police party headed by said complainant along with subordinate staff namely P.C. Muhammad Yagoob, P.C.
Abdul Rasheed and DPC Karnal had left the P.S. Vide Entry No.11 at about 14:20 hours in Government Vehicle for investigation in Crime Nos.72/2011 and 73/2011 of Police Station Phulladiyoon and during patrolling at about 16:30 hours they reached at Dher Mitho Fakir Chowk, Taluka Sindhri, meanwhile a person appeared from Western Side on motor cycle and apprehended him and the person disclosed his name as Muhammad Bux alias Papoo son of Muhammad Nawaz, and he was the same person who was required in both the above crimes and then the complainant arrested him and took his personal search which resulted in recovery of .30 bore pistol which was checked and found loaded with two live rounds and recovered weapon was, found unlicensed and during checking recovered motor cycle was found stolen case property of Crime No.73/2011 of Police Station Phulladiyoon. Mashirnama was prepared in presence of mashirs P.C. Muhammad Yagoob and PC Kamal and react-over the contents to them and obtained their signatures. F.I.R. Was then registered and pursuant thereto investigation was conducted and challan was filed whereby the applicant/accused sent up to stand trial.
3. Formal Charge was framed on 2-12-2011 to which applicant/accused pleaded not guilty and claimed trial alleging innocence and so evidence of prosecution witnesses namely H.C.
Muhammad Yagoob, SIP Abdul Rehman and SIP Imam Ali and through these witnesses prosecution also brought on record mashirnama of arrest and recovery, copy of roznamcha entry and F.I.R.
4. After the close of the prosecution side, examination/statement of applicant/accused was recorded who pleaded innocence and had denied the commission of the charged offence.
However, he declined to examine him on oath under section 340(2), Cr.P.C. As witness in his defence, nor examined any witness in his defence. Thereafter, impugned judgment dated 31-7-2012 was passed by the learned trial Court whereby the applicant was convicted and sentenced as aforesaid and appellant/applicant being aggrieved and dissatisfied with the said judgment had preferred Criminal Appeal No.7 of 201.2 to which cam up for hearing before learned Ist Additional Sessions Judge Mirpurkhas on 5-8-2013, however, the said appeal was dismissed with observation that there is no merits in the said criminal appeal and being aggrieved applicant now, has approached to this forum through instant criminal revision.
5. It has been contended on behalf of the applicant/accused that impugned judgment as passed by the learned appellate court is not sustainable in law and on facts and so on merits to be set aside and without adhering to fair trial and due process of law upon baseless grounds and same merits to be set aside, the alleged memo. Of arrest and recovery was prepared on dated 23-10-2011 at 16:30 hours, while same type of memo. Was exhibited in Criminal Case No.137 of 2011 in original condition in different writing, while mashir P.W. Yaqoob in his cross-examination specifically stated that only one memo of arrest and recovery was prepared on dated 23-10-2011 at about 16:30 hours.
She has further contended that the pistol when de-sealed it was found with different description as it was the case of the prosecution that said pistol was without any number and description and no signature of the mashirs was taken on the case property, so according to her, the very charge was baseless and prosecution has failed to prove charge beyond any reasonable doubt. She has further contended that the judgment as passed by the learned court below is the result of misreading and non-reading of evidence on record and without adopting the principle of fair justice depended upon the baseless ground and the material contradictions have not been looked and attached importance by the courts below and she has further contended that prosecution is bound to produce crime property before the court and mark it as an exhibit, to which since it failed and further according to him the manner in which police had prepared recovery memo. In itself casts serious doubts and the place of incident shown was not a deserted one and it was close village where private witnesses could be easily made available and the witnesses so cited are highly interested, as such, the impugned judgment as passed by the learned appellate court and so also the one passed by the learned trial Court merits to be set aside by this court in exercise of the revisional powers conferred as according to him the serious miscarriage of justice has resulted.
She has also referred to the evidence recorded at trial and has contended that it was duty of the appellate court to have framed the points for the purposes of disposal of the criminal appeal, which was not done and straight away the appeal was decided by just mentioning the submissions made, at the time of hearing of the criminal appeals. She has contended that it is for the appellate court while disposing the appeal to have considered each and every aspect of the matter and since according to her, the judgment as passed by the learned appellate court is the result of adopting slipshod method, such practice in no way can be appreciated and rather such practice ought to be deprecated. In support of her submissions she has cited the case of Nur Elahi v. The State and 2 others, reported in PLD 1966 SC p.708, Pahalwan Machhi v. Abdul Wahid and another reported in 1991 PCr.LJ Karachi 728, Patasho v. The State reported in 1997 M LD 1689 Naveed and another v. The State reported in 2014 PCr.LJ. Lahore p.250 and she has prayed to allow the instant criminal revision and to set-aside the judgments of the courts below.
6. On the other hand learned DPG appearing on behalf of the State vehemently opposed the revision in hand and has contended that during trial held before the learned trial Court sufficient evidence was adduced by the prosecution and so the trial Court was justified in passing the impugned judgment of conviction and he has contended that the learned appellate court have examined each and every aspect of the matter and since there was no case made-out for the learned appellate court to make any sort of interference in the judgment as passed by the learned trial Court, it was justified in dismissing the captioned criminal appeal and further according to him the scope of revision is limited.
7. I have considered the submissions made before me and have in depth examined the material available on record.
8. Before proceeding with this judgment I would like to mention here that it is settled law that save of revision is limited, inasmuch as the revisional jurisdiction is exercisable cases and my this view gets support from the decisions of the honourable superior Court as appeared in PLD 1982 SC(AJ&K) p.13 and PLD 1983 SC p.73. In the decision of the Honourable superior courts as appeared in PLD 1981 SC p.352 it was laid down that High Court can go into question of fact. In the decision of the honourable Superior Court as appeared in 2005 YLR 2325 it was laid down that revisional court has jurisdiction to correct the error resulting from non-reading, misreading of evidence or where the courts below failed to exercise jurisdiction vested in them and I may also refer to the decision of the honourable Superior Court as appeared in PLD 1999 Karachi p.144 wherein it was held that appellate courts can interference for correction of manifest illegality or prevention of gross miscarriage of justice.
9. Now after putting a deep glance on the scope of revision, the powers conferred therein and so also consulting the law and, moreso, since on behalf of the applicants/accused it was vehemently contended that the learned appellate court has failed to in depth examine and discuss the evidence adduced at trial by the prosecution, I feel it necessary to observe that no doubt it was the bounden duty which heavily lay on the shoulders of the learned appellate court to have framed the points for determination for disposal of the criminal since it was the first appellate court and there appears to be force in the submissions as made by the learned counsel for the appellate that the learned trial Court as well as Appellate Court have failed to minutely appraise the evidence recorded before the learned trial Court by the prosecution witnesses and since this court in empowered fully in view of the decision of honourable Superior Court as appeared in 2005 YLR 2325 that revisional court has jurisdiction to correct the error resulting from non-reading, misreading of evidence or where the court below failed to exercise jurisdiction vested in them and further since this court white sitting in revision has the jurisdiction to even assess and examine the evidence adduced at trial since I am of the view that procedural error can be rectified in exercise of powers under section 537, Cr.P.C. And so also it is the basic duty of the -court to exercise its power and authority when facts calling for its exercise are brought to notice as I am of the view that Revisional Court can always exercise its power to correct manifest illegality or to prevent gross miscarriage of justice and in this context I may refer to the decisions of the honourable Superior Courts as appeared in 1993 PCr.LJ 1463 and 1995 PCr.LJ 1835.
10. Formal charge was framed on 2-12-2011 to which applicant/accused pleaded not guilty and claimed trial alleging innocence and so evidence of prosecution witnesses namely H.C.
Muhammad Yaqoob, SIP Abdul Rehman and SIP Imam Ali and through these witnesses prosecution also brought on record mashirnama of arrest and recovery, copy of roznamcha entry and F.I.R.
11. P.W. SIP Imam Ali Exh.7 has deposed that on 23-10-2011 he was posted at Police Station Phulladiyoon and on the same day at 18:00 hours he along with his subordinate staff PC/Muhammad Yakoob, PC/Abdul Rasheed and DPC/Kamal left P.S. Vide Entry No.11 at about 14:20 hours in government vehicle for investigation in Crime Nos.72 and 73 of 2011 of Police Station Phulladiyoon and during patrolling at about 16:30 hours they reached at Dher Mitho Fakir Chowk, Taluka Sindhri, meantime a person appeared from western side on motor cycle who on seeing the police mobile tried to run away from three then they chased and apprehended him and the person disclosed his name as Muhammad Bux Papoo son of Muhammad Nawaz Shar and he was the same person who was required in both the above crime and he was arrested and his personal search pistol of .30 bore recovered which was found loaded with two live rounds and the accused disclosed that the recovered weapon was unlicenced and during checking the recovered motor cycle was found stolen case property of Crime No.73 of 2011 of Police Station Phulladiyoon and he prepared such mashirnama at spot in presence of mashirs P.C. Muhammad Yakoob and PC Kamal and read over the contents to them and obtained their signatures ever the mashirnama and brought the arrested accused and recovered property at P.S. Where he lodged the F.I.R.
12. Learned Defence counsel had exhausted the remedy to cross-examine to this witness and he has admitted that accused Muhammad Bux Shar was known to him prior to this incident. He has admitted that the weapon recovered from the possession of the accused Muhammad Bux was bearing the number. He has admitted that he had not sent the recovered pistol to the ballistic expert for forensic report. He had admitted that the sealed case property does not bear the signature of mashirs but it only bears his signature. The case property was de-sealed and when shown to the witness he has admitted that the number of making company i.e. Ibrahim and Sons Peshawar (KULACS) is not mentioned in the mashirnama. He also admitted that he had not produced the arrival and departure entry in court. This witness has denied material suggestions made to him during his cross-examination but in the end of his cross-examination the reply given by him is not of much importance as the said sentence reads "It is correct that I am deposing falsely". Here I may observe that either it is typographical error or otherwise the witness might have stated and as such no presumption can be drawn what was in his mind or it may be a slip of Tongue or typographical error.
13. P.W. H.C. Muhammad Yakoob was examined in the other case and so also in this case and this witness has deposed in the main case and this witness was extensively cross-examined and sufficient material came on record during his cross-examination and he has admitted that there is distance of three kilometer between place of incident and P.S. They reached at place of incident at about 16:30 hours and they stayed 10/15 minutes at the spot. To a question put to him on behalf of the defence he had replied that they saw the accused about three yards distance and accused after seeing the police tried to run-away on motor cycle but they caught hold of him and they apprehended accused while sitting on motor cycle and 1.0. Had obtained his signature on the memo. He has admitted that description of pistol is not mentioned in the memo., and so also admitted that the mark available on the pistol is not mentioned in the memo. However, he had denied to suggestion of the defence that nothing was recovered from this accused.
14. The other witness examined is P.W. Abdul Rehman. He is the person who conducted the investigation pursuant to the registration of F.I.R. Which included recording of 161, Cr.P.C. Statement, however, this witness has admitted that the pistol was not sent to the FSL for examination and report and so also admitted that he had not visited the place of incident.
15. The above perusal of the evidence makes it clear that there is sufficient doubt available which in my view goes to the very root of the case as it has been established at trial that appellant/accused was already known to the complainant but there is no such mention in the F.I.R. And this for the first time came on record during the evidence of complainant and further I feel no hesitation in observing that in the main case as well this applicant/accused was involved and the evidence so recorded in such cases is contradictory and on the face of it fabrication of story seems to latent and patent apparently and the possibility of false involvement which starts from the main case where the theft of motor cycle was alleged and then the applicant/accused and two others were involved seems to be cooked up story and at trial efforts was made to support such cooked-up story cannot stand on its feet and as the prosecution evidence at trial is not convincing and rather it is not free from reasonable doubts.
16. In the dictum of the honourable Superior Courts as appeared in 2000 SCM R 735 it has been laid down that 'Revisional jurisdiction being corrective jurisdiction power of High Court under section 439, Cr.P.C. Was not a power only but a duty whenever facts calling for its jurisdiction were brought to its notice or otherwise came to its knowledge'. In Patasho v. The State reported in 1997 M LD 1689 it was held that the points raised in this revision at the time of admission, which were found worth consideration were that provisions of section 103, Cr.P.C. Have been violated in this case as the alleged recovery was from as thickly populated town, near a bus stand during day time but the police made no efforts to secure the presence of an independent mashir'.
17. In the case in hand as well it came to record as regards gathering of number of persons at the place of incident and so also at the place of arrest-recovery shown and since it has come on record that the mashirs cited were procured by the complainant and the said mashirs/witnesses shown being relations belonging to his village.
18. The bare perusal of the judgment as recorded by the learned appellant court which is dated 5- 8-2013 passed in Criminal Appeal No.7 of 2012 makes it clear that no points were framed for the disposal of the appeal and so I have no hesitation in observing that the decision in said D appeal whereby mainly basing to the submissions as made by the learned counsel for the appellants and DDPP is a slipshod method adopted by the learned appellate court, which in no way can be appreciated.
19. Now reverting back to the legal proposition involved i.e. It is the duty of the prosecution to establish its case beyond any shadow of reasonable doubt and for extending benefit of doubt to accused it was not necessary that there should be many circumstances creating doubt and if there was a single circumstance which created reasonable doubt in a prudent mind about the guilt of accused then accused was entitled to benefit of doubt not as a matter of grace and concession but as a matter of right and in this context I may refer to the decision of the honourable Superior Court as appeared in 2013 YLR 2600. In the decision of the honourable Superior Courts as appeared in the case of Rehmatullah and other v. The State reported in 2005 PCr.LJ p.60 it was observed that benefit of doubt always to be given to accused not as a matter of grace, but as a matter of right. As regards matter of appraisal of evidence I may also refer to the case of Rabnawaz v. The. State as appeared in 2000 PCr.LJ 1036 wherein it was held that Court is duty bound in a criminal case to review the entire evidence led by the prosecution and the defence and after examination of the same if the court is of the opinion that the defence version might be true, the accused becomes entitled to the benefit of doubt, not as a matter of grace but as of right, since the prosecution has failed to prove its case beyond reasonable doubt.
20. Analyzing and assessing the prosecution case and the prosecution evidence and the conclusion reached at by the learned trial Court and so also the learned appellate court, I am clear in my mind in observing that the courts below have failed to attach importance to material aspects, which in fact have resulted in serious miscarriage of justice, therefore, the impugned judgment as passed by the two courts below are hereby set aside and in the result criminal revision application in hand is allowed and the applicant is set to liberty if not required in any other custody case.