' AFTAB AHMED GORAR, J.---This appeal has been filed against the impugned judgment dated 29- 8-2009, passed by 1st Additional Sessions Judge, Sukkur, in Sessions Case No,184/2008 Re: State v.
Roshan Ali alias Iqrar, under section 13(d) A.O. Whereby convicted the appellant under section 265- H(2), Cr.P.C. And sentenced him to suffer R.I. For three years and to pay fine of Rs,1000 and in case of default thereof he should suffer S.I. For 1 month more. However, benefit of section 382-B, Cr.P.C. Was extended to him.
2. Necessary facts for disposal of this case are that on 16-6-2008 SIP Abdul Jabbar Mahar S.H.O, Police Station Abad was on patrolling in the area. After patrolling at various places they reached at Airport police picket where he received spy information that some dacoits duly armed with weapons were standing at the link road leading from Bagerji to Jhangmor with intention to commit some offence. SIP Abdul Jabbar acquainted his staff and proceeded towards the pointed place, when at about 2130 hours reached at the link road leading to Bagerji Jhangmor, they saw four persons on search light of mobile who on seeing the police party started firing upon them with intention to commit their murders. Police party also retaliated the firing and encounter continued for about 20/25 minutes. During the encounter one of the persons fell down while raising cry, while the other made their escape good. The police officials apprehended two persons along-with Kalashnikovs. Due to non-availability of the private mashirs, ASI Bashir Ahmed Jagirani and ASI Abdul Jabbar Mahar were nominated as mahsirs and enquired about the names of the persons.
One disclosed his name as Abdul Fattah alias Fateh Muhammad alias Fatu and from his possession a Kalashnikov and five live bullets in the magazine was recovered besides 60 live bullets in the bag and three currency notes of Rs,50 from front pocket of his shirt were recovered.
The other, having injury on left arm and leg and was bleeding, disclosed his name as Roshan Ali alias Iqrar Mahar and a Kalashnikov was lying beside him which was taken into custody and was found loaded with one live bullet in its chamber and two in its magazine. The bag was found containing 48 bullets in it. On enquiry the accused disclosed that they had no license for the weapons. Complainant prepared memo of arrest and recovery at the spot, referred the injured accused to civil hospital Sukkur for treatment and brought another accused at the police station Abad where he lodged the FIR.
3. After fulfillment of all the necessary formalities charge was framed against accused as Exh.02, to which he pleaded not guilty vide plea recorded as Exh.03.
4. In support of its' case prosecution examined P. W.1, Complainant SIP Abdul Jabbar Mahar at Exh.04, he produced Photostat copy of memo of arrest and recovery as Exh.4-A, (Original produced in main S.C.No,182/2008). He further produced attested photocopy roznamcha entries Nos.29 and 38 regarding departure and arrival after arrest of the accused as Exh.4.B and C and FIR Ex.4.D. P.W.
ASI Bashir Ahmed was examined at Exh.5 and he produced attested photocopy of memo of inspection of the place of incident as Exh.5-A. (Original produced in main S.C. No,182/2008). P.W.
Muhammad Ismail was examined as Exh.6. Thereafter the side of the prosecution was closed by DDPP vide statement as Ex.7.
5. The statement of accused under section 342, Cr.P.C. Was recorded at Exh.8. In his statement he denied the allegations of the prosecution leveled against him. To reply the question have you to say anything else, he stated that in fact Police and Rangers personnel raided his village and made firing in which he sustained injury as he was working in the field and in order to save themselves from the clutches of law, the police booked him in this false case and such news was also published in the various newspapers and produced the news clipping and application. However, neither he examined himself on oath nor led any sort of evidence in his defence.
6. Learned counsel for appellant has submitted that on one and the same mashirnama the case bearing No,101 /2008 under sections 401, 353, 324, P.P.C. The appellant and co-accused have been acquitted by extending them benefit of doubt, but on the same evidence the learned trial court has convicted the appellant vide impugned judgment, which is against the norms of justice. He further submitted that the complainant to save himself from the clutches of law, has managed the above case, as the police and rangers had raided the village of appellant and made firing in which the appellant became injured, hence the appellant has been falsely booked in the above case by the police. He further submitted that entire prosecution evidence is consisting upon police personnel only. He further submitted that I.O. Has failed to send the Kalashnikov and empties to the ballistic expert for his opinion regarding its working condition. He submitted that there is contradiction in the statements of complainant and witnesses. He lastly submitted that the prosecution has failed to prove the case beyond any shadow of doubt hence the impugned judgment may be set-aside and the appellant may be acquitted.
5(sic) Learned A.P.G. Appearing on behalf of the State has supported the impugned judgment on the ground that appellant was arrested on the spot with one Kalashnikov and bullets were recovered from him.
6(sic) I have heard learned Counsel for the parties at considerable length and have perused the record.
7. In my view the prosecution has failed to prove its case against the appellant as two cases against the appellant and co-accused were registered being Crime No,101 of 2008 under sections 401, 324 and 353, P.P.C. And other bearing Crime No,103 of 2008 under section 13(d) Arms Ordinance under one mashirnama. Both the cases were tried and decided by the same court and on the very same day two judgments were delivered by the trial court and from the case under sections 401, 324, 353, P.P.C. The appellant was acquitted and the case under section 13(d) A.O. Has been convicted. The learned trial court disbelieved the prosecution evidence in one case and more or less on the same evidence of prosecution witnesses, convicted appellant without assigning sound reasons. Kalashnikov recovered from the appellant having neither been sealed at the spot nor sent to the ballistic expert along with empties for examination and report as such prosecution case was highly. For my above stated reasons, I have come to the conclusion that doubtful. Lapse on the part of police is clear and admitted. Wisdom behind sealing the weapons at the place of incident is to eliminate the possibility of manipulation of evidence after the recovery of the crime weapons.
Sealing of weapons is essential, particularly in cases when it is alleged that weapon was used in the commission of crime and empties were secured from the Wardat. In this case Kalashnikov was used in commission of offence and recovered from the possession of appellant, two empties were collected from the place of incident. In such situation Kalashnikov and empties were to be sent to the Ballistic Expert for examination and report so as to connect the appellant in the commission of crime. In this case weapon and empties were not sealed and possibility could not be excluded regarding tampering with the said piece of evidence. In order to avoid possibility of manipulation, this court has always insisted that property should be sealed at the place of wardat so as to discard any possibility of manipulation or tampering with prosecution evidence. Unfortunately, this exercise has not been completed in this case, nor reason has been assigned for such omission. The prosecution could not satisfy the Court about such omission. No doubt police officials as citizens are as good witnesses in Court proceedings as any other person yet, some amount of care is needed when they are only eye-witnesses in the case. It is not on account of an inherent defect in their testimony but due to a possibility that an individual police official and not all, might in mistaken zeal to see that the person he believes to be a culprit, is convicted, might blur line between duty and propriety. It is the settled law that in the exercise of appreciation of evidence it is necessary as pre-requisite, to see whether witness in question is not such an overzealous witness.
In this case, the defence plea taken by the appellant is that in fact police and ranger personnel raided his village and made firing in which he sustained injury as he was working in the field and in order to save themselves from the clutches of law, the police booked him in this case and such news was published in various newspapers, but such plea has not been considered by the learned trial Court. Furthermore, on the spy information police reached at the place of incident and the police officials have sufficient time to call the independent and respectable persons of locality to make, the mashirs in this case but it has not been done. Their testimony, appears to be unnatural and untrustworthy, and creates doubt in the prosecution case. All these factors create doubt in the prosecution case.
' For my above stated reasons, I have come to the conclusion that prosecution has to prove its case against the accused beyond reasonable doubt, in this case there are several circumstances, which create doubt in the prosecution case prosecution case, as to veracity and credibility of prosecution witnesses, is full of doubts, its benefit must be extended to appellant. Consequently, appeal is allowed. Conviction and sentence dated 29-8-2009 is set aside. Appellant is acquitted of the charge. He is present on bail, his bail bonds stand discharged and surety discharged. Office is directed to return the surety papers of the appellant after proper identification and verification.