SYED MUHAMMAD FAROOQ SHAH, J.---The captioned Criminal Appeal is directed against the judgment dated 15.06.2017, passed by the learned IXth Additional Sessions Judge, Karachi-East, in Session Case No 458 of 2015 (FIR No 463/2014, under Section 23(i)(a) Sindh Arms Act, 2013), registered at P.S. Gulshan-e-Iqbal, Karachi, whereby the appellant has been convicted for an offence punishable under Section 23(i)(a) of Sindh Arms Act, 2013, to suffer R.I. for seven [7] years and to pay fine of Rs, 20,0001-, in default thereof, to suffer SI for six months more; however, benefit of section 382-B, Cr.P.C. was extended to the accused. The appellant has prayed for setting aside the impugned judgment and for his acquittal from charge of this case, on the facts and grounds averred in the memo. of appeal.
2. Prosecution story as narrated in the FIR is that on 18.09.2014 a police party headed by SIP Naveed Iqbal of P.S. Gulshan-e-Iqbal, Karachi (Complainant) apprehended the appellant and from his possession an unlicensed .32 bore Revolver bearing No, A-594 loaded with three live bullets was recovered. On submission of final report under Section 173, Cr.P.C., the appellant was charge sheeted for an offence punishable under Section 23(i)(a) Sindh Arms Act, 2013, to which, the appellant pleaded not guilty and claimed trial.
3. To support its case, prosecution examined in all three witnesses. PW-1 SIP Naveed Iqbal, who produce Roznamcha entry as Ex-3/A, memo. of arrest and recovery as Ex.3/B and FIR at Ex-3/C.
PW-2 ASI Jangal Khan, who is mushir of arrest and recovery as Ex-4. PW-3 ASI Muhammad Aslam Bhatti, who has been examined as Ex-5. He produced Entry No, 06 thereby investigation of the case was entrusted to ASI Qalandar Bux at Ex-5/A, copy of letter written by ASI Qalandar Bux to FSL for examination of pistol and report at Ex-5/B and FSL report at Ex-5/C. On conclusion of prosecution evidence, statement of the accused was recorded under section 342, Cr.P.C.
4. Arguments heard. Record perused.
5. Mr. Zakir Hussain, learned counsel for the appellant, inter-alia, submits that the appellant has falsely been implicated in this case by the police. He argued that the impugned judgment is result of misreading, non-reading and non-appreciation of evidence; moreso, the recovery as shown in the alleged memo. of arrest and recovery was .32 bore Revolver bearing No, A-594 with three live bullets but the Complainant, who is star witness of the prosecution, stated in his examination-in- Chief that "I arrested him and searched his body and recovered One .12 bore Revolver bearing No, F-594 Loaded with three rounds". Learned Counsel next submits that, if at all, this is a case of recovery of an illicit weapon and that there are material discrepancies and contradictions amongst prosecution witnesses, which cannot be brushed aside for safe administration of justice.
PW-2 ASI namely Jangal Khan, in his examination-in-chief, stated in the following words:-- "SIP Naveed Iqbal conducted his personal search and recovered one .30 bore pistol from the left side of the neat of his pent along with three live bullets".
6. Learned Counsel argued that there is also-difference of timings as mentioned in FIR and memo. of arrest and recovery in the depositions of prosecutions of prosecution witnesses which creates serious doubts in the prosecution case; that the evidence led by the prosecution is tutored one and versions of PWs are after thoughts and have been advanced after due consultation but the learned trial Court without applying its judicial mind passed the impugned judgment hurriedly. Learned Counsel further argued that material question with regard to recovery of weapon, FSL report, beside other substantial evidence have not been questioned to the accused while recording his statement under section 342, Cr.P.C. He further submits that admittedly the Complainant/I.O. deliberately and intentionally did not call any independent person to act as witness of recovery or place of occurrence. Learned counsel lastly submitted that the prosecution case hinges entirely on circumstantial evidence, then each piece of evidence collected 'lust provide all links making out one straight chain but the prosecution has failed to consider the chain.
7. Conversely, learned Prosecutor, without adverting to the worthy arguments advanced by learned Counsel, conceded the acquittal of accused and recorded no objection to set aside the impugned judgment and allow the appeal.
8. Suffice it to say that the prosecution case hinges on testimony of three witnesses namely Complainant SIP Naveed Iqbal and witness of recovery PW ASI Jangal Khan. Examination-in Chief of third prosecution witness was recorded as exhibit-5 without providing opportunity of cross- examination to the defence. It needs not to be reiterated that cross-examination is the great legal engine invented to unearth the truth from the statement of a witness. Opportunity to cross- examine contemplated by the law must be real, fair and reasonable. Cross-examination was not an empty formality, but a valuable right and best method for ascertaining the truth. The right of cross-examination has from times immemorial been held to be particularly in criminal cases a valuable right to the accused. It is a weapon which an accused person or an Advocate on his behalf can wield for the purpose of testing the veracity of the statement made by a witness.
Learned Counsel correctly pointed out that as per documentary evidence brought on the record.
32 bore Revolver bearing No, A-594 loaded with live three bullets was allegedly recovered from inside wearing pent of the appellant and such documentary evidence has not been supported by both examined prosecution witnesses as the Complainant SIP Naveed Iqbal, who may be termed as star witness of the prosecution case, stated that from personal search of appellant, he recovered .12 bore Revolver bearing No, F-594 whereas the only attesting prosecution witness PW-2 ASI Jangal Khan stated that from personal search of appellant one .30 bore pistol from the left side of 'naifa' of his pent was secured. However, the examination report placed on record by the prosecution shows that the ballistic expert, in his opinion, mentioned Revolver rubbed number of .32 bore.
9. Discrepancies and illegalities pointed out by the learned Counsel are creating a reasonable doubt as there are lot of loop holes and material contradictions in the prosecution witnesses, which are sufficient to observe that the prosecution has failed to prove its case against appellant beyond any shadow of doubt; the benefit of which must go to the appellant. It is established law that for giving benefit of doubt to an accused, there need not be a number of circumstances to prove the innocence of accused; even single circumstance creating reasonable doubt is sufficient for the acquittal of an accused but the trial court has failed to appreciate the evidence brought on record by convicting the appellant which is against the law. It is well known principle of appreciation of evidence that the benefit of all favorable instances in the prosecution evidence must go to the accused regardless to the fact as to whether he has taken any such defense plea or not.
10.Crux of the aforementioned discussion is that the impugned judgment is not tenable in law as it does not base on direct or substantive evidence and therefore the guilt of accused cannot be based on high probabilities that may be inferred from evidence in this particular case.
11.Resultantly, the appeal in hand is allowed. Consequently, the impugned judgment of the trial court is set aside and the appellant is acquitted from the charge of this case. He is on bail. His bail bonds stand cancelled. Surety discharged.