' NAIMATULLAH PHULPOTO, J.---Appellant Shahid Iqbal was tried by Ms. Sarwat Sultana, VIII Assistant Sessions Judge, Karachi East, for offence under section 23(1)(a) of Sindh Arms Act, 2013. The appellant was found guilty and vide judgment dated 25.02.2014 he was sentenced to suffer R.I. For 6 years and to pay fine of Rs.20,000/-. In case of default in payment of fine he was ordered to suffer S.I. For one month more. Appellant was extended benefit of section 382-B, Cr.P.C. By this appeal, the appellant has challenged his conviction and sentence before this Court.
2. The prosecution story lay within a very narrow compass. On 27.07.2013 ASI Muhammad Ashfaq of P.S. Kornagi Industrial Area, Nasir Colony, Karachi left police station along with his subordinate staff, namely, PCs Aurangzeb, Muhammad Shafiq and Samar Abbas for patrolling duty. Duty hours of the police party were 08:00 p.m. To 08:00 a.m. During patrolling, police party reached near Ahl-e- Hadees Masjid, Main Road, Nasir Colony, Karachi at 0015 hours where police party saw present accused standing in suspicious manner. He was caught hold and his name was inquired to which he has disclosed his name as Shahid Iqbal son of Munir Ahmed. AS!. Muhammad Ashfaq conducted personal search of accused in presence of mashirs, namely, PCs Aurangzeb, Muhammad Shafiq and Samar Abbas. During search, one T.T. Pistol and three live bullets were recovered. The appellant failed to produce license for weapon carried by him, he was arrested.
Mashirnama of arrest and recovery was prepared in presence of mashirs. Case property was sealed at the spot. Thereafter, accused and case property were brought to the police station where FIR was lodged against the accused on behalf of the State vide Crime No.498 of 2013 under section 23(1)(a) of the Sindh Arms Act, 2013.
3. After registration of FIR, investigation was handed over to AS! Ali Nawaz, who visited the place of recovery in presence of mashirs and prepared such mashirnama. Investigating officer recorded 161, Cr.P.C. Statement of accused. Weapon was sent to expert, positive report was received. On conclusion of the investigation challan was submitted against the accused under the above referred section.
4. Charge under section 23(1)(a) of the Sindh Arms Act, 2013 was framed against the appellant and he was asked whether he pleads guilty or has any defence to make to which he pleaded not guilty and claimed a trial. At the trial prosecution examined following witnesses:
(i) PW 1 Muhammad Ashfaq.
(ii) PW Ali Nawaz
(iii) PW Muhammad Shafiq. Thereafter, prosecution side was closed.
5. In his statement recorded under section 342, Cr.P.C. Appellant has disputed the case of prosecution by alleging his false implication in this case for political reasons. Appellant has raised plea that all the PWs are workers of a political party. The appellant did not step into the witness box and did not examine any witness in defence.
6. On assessm ent of evidence available on record, learned Assistant Sessions Judge found the appellant guilty and convicted him as stated above.
7. Mr. Shah Imroz Khan, learned counsel for the appellant with great energy put before me the- reasons for disbelieving the prosecution witnesses who are belonging to the police and has endeavoured to show that their evidence as to patrolling and recovery of T.T. Pistol from possession of the appellant is untrustworthy. He has also argued that prosecution witnesses have failed to produce arrival and departure entries in the evidence despite contention of defence counsel. He has also argued that there was inordinate delay in sending the T.T. Pistol and ammunition to the expert, tampering with the case property could not be ruled out. It is also argued that place of recovery is situated at thickly populated area, no efforts were made by A.S.-I. Muhammad Ashfaq to call the independent and respectable persons of the locality to make them as mashirs in this case. He has also referred to the number of contradictions in the evidence of the complainant and mashir of recovery.
8. Mr. Abrar Ali Khichi, learned Assistant Prosecutor General Sindh argued that prosecution has proved its case against the appellant. Evidence of police officials is as good as that of any other citizen. He has supported the impugned judgment.
9. The evidence of police officials cannot be discarded simply because they belong to the police force. The Court should not start with any presumption against them.
10. However, in a case of recovery of arms where the fate of an accused person hinges upon the testimony of police officials alone, it is essential to find out if there was any possibility of securing independent persons at the time of recovery. The conviction or acquittal of an accused person depends upon the credibility of the witnesses as assessed by the Court but where it was possible for the police officials to call independent witnesses to act as mashir but he deliberately avoided, the Court has to be very careful in weighing such evidence. It is settled principle of law that judicial approach has to be cautious in dealing such type of evidence.
11. I am conscious of the fact that provisions of section 103 are not attracted to the case of personal search of a person, however, where alleged recovery was made from the appellant, place of recovery is situated in a thickly populated area like near Ahl-e-Hadees Masjid, main road, Nasir Colony, Karachi, the omission to secure independent mashirs from the locality is significant and cannot be brushed aside lightly by this Court.
12. PW Muhammad Ashfaq has deposed that on 27.07.2013 he left police station along with his subordinate staff and arrested the present accused in a suspicious manner at Ahl-e-Hadees Masjid, main road, Nasir Colony, Karachi, and recovered from his possession one 30 bore pistol and three live bullets for which he had no license. He lodged FIR on behalf of the State and handed over the case papers and custody of accused to the I.O. In cross-examination he has admitted that he has not mentioned the Roznamcha entry and T.T. Pistol was not in working condition.
13. PW H.C. Muhammad Shafiq has deposed that on 27.07.2013 he along with AS Muhammad Ashfaq and other police constables left the police station for patrolling. The appellant was arrested at 0015 hours at Ahl-e-Hadees Masjid, 30 bore pistol without license was recovered from his possession. He acted as mashir. In his cross-examination he admitted that he has not disclosed the time of recovery in his statement recorded under section 161, Cr.P.C.
14. Ali Nawaz, investigating officer after receipt of F.I.R. And custody of accused investigated the case, visited the place of wardat and sent the property to the FSL, completed investigation and submitted challan against accused. In his cross-examination he has admitted that he has not produced Roznamcha entry in the Court.
15. I have examined/scrutinized the prosecution evidence minutely. Prosecution has failed to prove its case against the accused beyond any shadow of doubt for the reasons that despite contention of defence counsel, arrival and Roznamcha entries have not been produced in evidence. In order to satisfy the Court that police party had actually left at relevant time for patrolling. Non-production of departure and arrival entries in evidence cuts the roots of prosecution case. Moreover, no private person of the locality has been examined in this case. Accused in his statement under section 342, Cr.P.C. Has raised plea that recovery has been foisted upon him for the political reasons. This defence plea was rejected by the learned trial Judge for no obvious reasons and dealt with by trial Court in a very casual manner. The proper mode of appraisal of evidence in this case for the trial Court was to consider the reliability of each witness separately then to examine the case as a whole and also to examine the credibility of the prosecution witnesses in juxtaposition with each other. Mere fact that mashir of recovery had no apparent reason to depose falsely against the accused was not sufficient to hold him trustworthy. Mere fact that prosecution witnesses had no enmity with the appellant to implicate him falsely does not render their evidence unassailable.
Truth or falsity of the statements of the prosecution witnesses largely depends upon the circumstances to accept the prosecution evidence without considering the circumstances would be totally inconsistent with the safe administration of justice. There is also another aspect of the case, rubbed number pistol was recovered from the possession of the appellant on 27.07.2013 but the same was sent to the fire arm expert on 13.08.2013. Inordinate delay in sending the pistol to the expert has not been explained by the prosecution as the number of pistol was rubbed, possibility, cannot be ruled out that it was foisted upon the appellant by the police. In above circumstances, positive report expert would not improve the prosecution case. It is a known principle of appreciation of evidence that benefit of all favourable circumstances in the prosecution evidence must go to the accused regardless of whether he has taken any such plea or not. Reliance is placed on the case of Muhammad Nawaz and another v. The State and others (2005 PLD Supreme Court 40). In the present case, there are several circumstances, which create serious doubt in the prosecution case. No doubt, the Sindh Arms Act, 2013 is enacted to curb the proliferation of arms and ammunitions and punishment for possession of any fire arm is extended to 14 years and with fine. The rule for safe administration of criminal justice is; the harsher the sentence the stricter the standard of proof. Therefore, for the purposes of safe administration of criminal justice, some minimum standards of safety are to be laid down so as to strike a balance between the prosecution and the defence and to obviate chances of miscarriage of justice on account of exaggeration by the investigating agency. Such minimum standards of safety are even otherwise necessary for safeguarding the Fundamental Rights of the citizens regarding life and liberty, which cannot be left at the mercy of police officers without production of independent evidence.
16. On overall assessm ent of entire evidence in the case and on considering of the surrounding circumstances, I am of the considered view that case against the appellant is doubtful in nature.
Accordingly, I extend benefit of doubt to accused and acquit him from the charge. The conviction and sentence recorded against the appellant are set aside. The appellant who is in custody be released forthwith if not required in any other case. In the result the appeal is accepted.