' SYED MUHAMMAD FAROOQ SHAH, J.---Appellant Umed Ali son of Ghulam Nabi Machhi has been convicted for the offence under section 13(d) Arms Ordinance, on alleged recovery of unlicensed Kalashnikov on 19-8-2012 and sentenced to suffer R.I.
For seven years and to pay fine of Rs, 30,000, in case of failure to pay the fine, he shall further undergo for six months simple imprisonment. The appellant has assailed the judgment of conviction through the present appeal.
2. The brief facts of the prosecution case according to F.I.R. Lodged by SIP Muhammad Ali Lashari, S.H.O. Police Station Bhan, are that during patrolling along with his subordinate staff, he proceeded for the arrest of absconders nominated in Crime No,77 and 79 of 2012, registered at Police Station Bhan under sections 324, 353 P.P.C. And the nominated accused Taj Muhammad and others duly armed with deadly weapons were found sitting on a Hotel near railway crossing. The accused persons on seeing the police party, fired burst from the Kalashnikov. The police party in defence scattered and took the positions and chased the accused persons. Three accused persons were encircled and arrested tactfully and from possession of appellant Umed Ali one Kalashnikov loaded with magazine, bearing No,1695 was secured and illicit weapons were also recovered from two other co-accused. The accused persons and case property were brought at Police Station where F.I.R. Was lodged. On completion of usual investigation, the appellant was charge sheeted.
3. After framing of the charge, to which the appellant did not plead guilty, the prosecution to substantiate the allegations against the appellant, examined only two witnesses namely P.W.1 H.C.
Muhammad Sajjan who acted as witness/mashir of arrest and recovery and P.W.2 SIP/S.H.O.
Muhammad Ali Lashari who after lodging the F.I.R., conducted investigation as well. The remaining witnesses have been given up by the prosecution. It appears from the perusal of record that in charge-sheet there were in all 23 witnesses but the prosecution depended upon the evidence of two police officials. After closure of prosecution side, statement of accused was recorded under section 342, Cr.P.C. And on hearing both sides, the judgment was recorded and pronounced, as mentioned supra.
4. To reach at the exact conclusion and for just decision of the appeal in hand, following points requires determination:- ' POINT NO.1.---As to whether the trial Court has not fully examined the available evidence and has not given importance to the cross-examination of both examined P. Ws . ?
' POINT NO.2.---Whether judgment is based on surmises and conjectures and is the result of misreading and non-reading of the evidence, available on record, contrary to the law, against facts of the case and principles of criminal justice system?
' POINT NO.3.---The incident was allegedly witnessed by number of private persons of the locality and even on receipt of advance information about presence of the accused persons at the pointed place, the police did not call any respectable inhabitant of the locality to act as a witness or mashir of the incident.
' POINT NO.4.---As to whether enmity existed in between the appellant and I.O./Complainant SIP Muhammad Ali Lashari over the murder of brother of appellant and such F.I.R. Was also registered against the I.O./complainant?
' POINT NO.5.---The judgment of the trial. Court .Is against the principles of natural justice, hence is not maintainable and liable to be set aside.
5. On the aforementioned points, the arguments advanced by Mr. Ishrat Ali Lohar, learned counsel for the appellant and learned A. P.G. Mr. Shahid Shaikh are considered and record has also been perused.
6. Point No 1:- Perusal of the impugned judgment reveals that the learned trial Judge did not like to go through the depositions, which include examination-in-chief/crossexamination of both witnesses, as neither evidentiary value of their testimony was discussed nor material contradictions in their evidence were considered; moreso, defence plea taken by the appellant in his statement under section 342, Cr.P.C. Has also not been discussed, considered or appreciated. It shall advantageous to reproduce relevant Paragraph of the impugned judgment as under:- "It was contended by learned counsel that there is violation of section 103, Cr.P.C. As many persons were available at the place of recovery but police by flouting their authority had not associated two independent witnesses from the locality, therefore, this ground is sufficient for the acquittal of the accused. As now the ground realities are changed and no independent person from the locality is prepared to associate with the Police in the proceedings because the grip of state has loosened and no witness is provided protection in the Court by the State, therefore, independent witnesses avoid to co-operate with the police. Moreover, it is held in numerous citations that police witnesses are as good witnesses as are private persons, therefore, under the changing and compelling circumstances the evidence of the Police cannot be thrown into the dustbin. Moreover, the cost of each Kalashnikov is round about Rs,120, 000 to 150,000 and it is not possible for one SIP to purchase two Kalashnikovs for foisting upon two persons. Case, Police wanted to involve the accused in the commission of offence then certainly accused could be involved in narcotics/drug case because narcotics substances is cheaper then the Kalashnikov which could be easily arranged and foisted by the police upon the accused but same was not done. In view of above discussion and reason the point No,1 is answered in affirmative."
Point No,2 The learned Judge has seriously erred to evaluate the price of Kalashnikov rifle round about Rs,1,20,000 to Rs,1,50,000 without showing his personal source of information and to observe that it was not possible for SIP Muhammad Ali Lashari (Complainant/I.O.) to purchase two Kalashnikovs for foisting upon two persons, The learned trial Judge has gone beyond his scope and jurisdiction, by making further observation that "in case, police wanted to involve the accused in the commission of offence then certainly accused could be involved in narcotics/drug case, because narcotic substance is cheaper than the Kalashnikov which could be easily arranged and foisted by the police upon the accused but the same was not done." Such observation is based on supposition, surmises and conjectures and is a result of misreading and non-reading of the evidence, available on record. Supposedly, how the learned trial Judge may evaluate the price of a Kalashnikov rifle though he is not supposed to aware about the value of such contraband, prohibited weapon. It was incumbent upon the learned trial Judge to discuss the evidence available on the record and then to discard or believe the same with sound reasons, which he has not done. Being a senior Judicial Officer,' he must aware about the art of judgment writing, as neither he has discussed nor admitted/ discarded the credibility of deposition of 1.0./Complainant, in view of admitted animosity in between appellant and complainant,' who has also conducted investigation. Point No,2 is therefore answered in affirmative. Point No,3:- Keeping in view the findings on point No,2, I reached at the irresistible conclusion that the judgment is contrary to the law, facts of the case and against the principles of criminal justice, hence cannot be sustained.
Point No,4: ' Some deliberations have been made in impugned judgment while making observation by the learned trial Judge that per learned counsel there is violation of section 103, Cr.P.C. As independent person of the locality did not participate in the recovery. Learned trial Judge has shown justification of non-association of private persons - on the ground that independent witnesses avoid to co- operate with the police and that police witnesses are as good witnesses as are private persons and that under the changing and compelling circumstances, the evidence of police officials cannot be thrown into the dustbin. Such observation is result of non-reading of evidence, more particularly, animosity with complainant/I.O. Has specifically been alleged by the appellant and in reply to such question, the 1.0./Complainant has admitted in cross-examination that accused/ appellant is brother of deceased Taj Muhammad and has also admitted his involvement in the murder of Taj Muhammad Solangi and registration of F.I.R. Against him has also been admitted.
' The remaining and co-witnesses Muhammad Sajjan has also admitted in cross-examination that S.H.O. Muhammad Ali Lashari (Complainant/1.0.) is accused in the murder of deceased Taj Muhammad. He has also admitted that main accused in Crime under sections 324, 353, P.P.C. Was Taj Muhammad and that accused Umed Ali is relative of Taj Muhammad. On the other side, the appellant in his statement, recorded under section . 342, Cr.P.C. Claimed his innocence and stated that police has falsely involved him in the case as his brother was murdered by SIP/S.H.O.
Muhammad All Lashari. Since there is admitted animosity in between the complainant/1.0. And appellant, therefore, the evidence of the complainant/LO, cannot be considered trustworthy and inspiring confidence. The only supporting witness HC Muhammad Sajjan who was examined in support of deposition of complainant/ I.O., is admittedly subordinate to the complainant and certainly he can be compelled to give deposition in favour of his boss. In such peculiar circumstances, it cannot be said that the evidence of police officials is as good as any other private person. Admittedly, alleged incident had witnessed by number of private persons of the locality and even on receipt of advance information about presence of the accused, the police did not call any respectable person to act as a mashir or witness of the incident. Perusal of the statement of the appellant recorded under section 342, Cr.P.C., available in R&Ps of the trial Court reveals that in reply to question No,4, which pertains to the examination of accused on Oath, the learned Judge has recorded the answer that "all the police officials were hostile to the accused."
Moreso, the entry in roznamcha has also not been produced to prove the movement of police from the Police Station to the place of recovery of weapon. Ballistic Expert has also not been examined by the prosecution but his certificate has been exhibited by the complainant/1.0. As Exh.8-C, which shows that the weapon was received by him after five days of the incident and he has examined both rifles together and observed that no definite opinion can be expressed as when these were last fired. Point in discussion. Is therefore answered in affirmative.
Point No,5:- As mentioned supra, from the list of 23 prosecution witnesses, mentioned in the charge sheet, the prosecution has examined only two witnesses. The star witness of the prosecution is complainant/ I.O. SIP Muhammad Ali Lashari who is inimical to the appellant due to his involvement in the murder of Taj Muhammad, who was brother of appellant, therefore, his evidence may not be treated inspiring confidence and trustworthy and therefore, not found fit in probabilities of F the case, accordingly, the conviction recorded merely on the statement of two police officials was not in accord with the safe administration of justice. A perusal of the impugned judgment reveals that the learned trial Court acted in oblivion of the principles of appreciation of evidence in criminal matter, to evaluate it and discover the probabilities with regard to conviction of the case. From the material on record, the version of the prosecution found without independent corroboration, which adversely affects the credibility of the prosecution witnesses' testimony. All these facts have not been considered by the learned trial Court, resulting in the illegality and gross irregularity of impugned judgment. Need arises to re-emphasize here that keeping in view the judicial wisdom and experience and while balancing the judicial conscious, justice should be dispensed with according to the law and ought not to be administered according to the whims, caprice, or subjective standard of an individual judge, in the overall context.
7. For the foregoing reasons, I reached at the irresistible conclusion that evidence on record falls short of disclosing the charged offence against the appellant. In the circumstances, the conviction and sentence awarded to the appellant was set aside and consequently the appellant was acquitted by a short order announced today in the Court, during early hours and these are the reasons of the said short order.