1. MRS. ASHRAF JAHAN, J.---Appellant Muhammad Nabeel has assailed the Judgment dated 22.07.2017, passed by learned IIIrd Additional Sessions Judge, Karachi (Central) in Sessions Case No,988/2016, arising out of FIR No,164/2016 under section 23(1)(a) of the Sindh Arms Act, 2013 of P.S Gulbahar, Karachi.
2. The facts leading to the present FIR are that Complainant S.H.O/Inspector Saleemullah Khalid Qureshi of P.S. Gulbahar, Karachi lodged FIR on 19.10.2016, stating therein that in connection of FIR No,163/2016, under section 302/34, P.P.C. at the time of arrest of accused Muhammad Nabeel one .30 bore pistol bearing No,A-9811 with magazine and three live bullets was recovered from his possession. After completion of legal formalities the accused along with case property was brought at the police station and FIR was lodged.
3. The charge against the accused was farmed on 19.12.2016 under section 23(1)(a) of the Sindh Arms Act, 2013, to which he pleaded not guilty and claimed for trial.
4. The prosecution in order to prove charge against the present Appellant examined following witnesses: ASI Saeed Anwar at Ex.3, who produced the memo of arrest and recovery as Ex.3/A, Roznamcha entry Nos,29 and 30 as Ex.3/B & 3/C and memo. of inspection of place of incident as Ex.3/D. P.W ASI Nadem was given up by the Prosecution vide statement as Ex.4. P.W SIO Muhammad Jaseem Khan was examined as Ex.5, who produced the copy of FIR as Ex.5/A, letter to incharge FSL and FSL report as Exs.5/B & 5/C respectively and copy of final order issued by the office of Additional Inspector General of Police Karachi Range as Ex.5/D.
5. The learned ADPP closed the side for prosecution vide statement as Ex.6 on record.
6. The statement of accused under section 342, Cr.P.C. was recorded, wherein he denied the allegations leveled against him and further pleaded that he was falsely implicated in this case. He also examined himself on oath as Ex.7 and produced Tauheed Akhtar and Zubair Ahmed Gouri as Exs.8 and 9 respectively as his defence witnesses.
7. The trial Court after concluding the trial convicted the Appellant vide Judgment dated 22.07.2017 and sentenced him for seven years R.I with fine of Rs, 50,000/-. In case of default in payment of fine to further undergo S.I for six months. The benefit under section 382-8, Cr.P.0 was also extended in his favour.
8. I have heard learned counsel for the Appellant, who contended that the Trial Court has passed the impugned judgment on the basis of misreading/non-reading of prosecution evidence. The time of lodging the FIR mentioned in it is 2245 hours, whereas, as per the version of prosecution witnesses the FIR was lodged at 2315 hours. Thus the trial Court did not consider that the FIR in the above crime was lodged before arrival of raiding party back to the Police Station. Such contradiction itself shows that the prosecution story is false and fabricated. It is also important to note that the name of present Appellant was disclosed by the accused Nafees-ur-Rehman involved in murder case bearing No,163/2016, who was already in police custody, therefore, such disclosure of name of present Appellant has no value in the eyes of law. Not only this, but the prosecution has failed to examine the complainant of this case, who was already dismissed from services due to his malicious service record. Even the FIR of crime No,163/2016 was lodged against the unknown culprits and neither the name of the present Appellant was mentioned in it nor any specific role or description of the Appellant was given at the time of recording of earlier FIR bearing No,163/2016.
9. Apart from it, the sketch of pistol produced on record by the prosecution bears a different number of recovered pistol, which fact has not been denied by the prosecution witnesses, therefore, under these circumstances, the Judgment of the trial Court is liable t be set aside. Furthermore, there are material contradictions in the evidence of two witnesses examined by the prosecution regarding time of occurrence, recording of mashirnamas, sealing of case property etc. which has made the whole case of prosecution doubtful one.
10. Conversely, it is contended by learned Additional Prosecutor General that question of false implication does not arise as the name of the present accused was disclosed by the accused Nafis-ur-Reham involved in crime No,163/2016 under section 302/34, P.P.C.; the memo of arrest and FSL report bear the same pistol number, at the same time she admitted that incorrect number of pistol has been mentioned in the sketch due to mistake.
11. I have considered the arguments and have perused the case 4 record. As mentioned earlier in the instant crime, the prosecution has not examined the Complai?iant, who had lodged FIR but examined only two Mashirs of arrest and recovery namely SIP Jaseem Khan and ASI Saeed Anwar.
12. Surprisingly, the SIP Muhammad Jaseem Khan was subsequently handed over the investigation of this case as well. It has come on record that complainant of this case namely S.H.O/Inspector Saleeinullah Khalid Qureshi, who had lodged FIR in the present crimp has already been dismissed from service vide order dated 02.03.2017 on the charges of misconduct and corruption. When the evidence available on record is examined, it goes to show that two witnesses who are of the rank of SIO/SIP and ASI have given contradictory evidence in the present case in respect of time of lodging the FIR As the FIR shows the time of instant crime as 2145 hours and time of lodging of FIR as 2245 hours of same date 'i,e, 19.10.2016, but strangely one mashir disclosed in his cross- examination that they have returned to the Police Station at about 2315 hours and the other disclosed the time as 2330 hours. Similarly, regarding the distance in between the place of incident (from where the C present Appellant was arrested) and police station, mashir ASI Saeed Anwar stated that it was at a distance of half kilometer from the Police Station while other disclosed that it was at a distance of 2-1/2 to 3 Kilo Meters. Likewise they have given contradictory statements regarding preparation of memo of arrest and recovery.
13. Another important aspect of the case, which cannot be brushed aside is that the prosecution has produced sketch of the two recovered pistols, one allegedly recovered from the possession of Appellant Muhammad Nabeel and the other recovered from the accused Umer Imam. The number of pistol recovered from the present Appellant as per E sketch is shown as A-9877 while the mashirnama of arrest and FSL report reveal that the number is A-9811. As mentioned earlier learned Additional Prosecutor General has stated that it can be due to mistake, but in a case under section 23(1)(a) of the Arms Act, 2013 where evidence of only two witnesses has been recorded, as prosecution has already failed to examine the complainant, such mistake cannot be ignored but on the contrary can be termed as dent in the case of prosecution. As mentioned above on one hand S.I.O Muhammad Jaseem Khan, who was among the raiding party of the police and had acted as mashir of arrest and recovery in this crime was subsequently handed over the investigation of the same crime, which act is against the spirit of law; when he had acted as mashir, how and under what circumstances he was handed over the investigation of this crime.
14. This illegality is again a question mark against the case of prosecution.
15. In the instant case, the Appellant has examined himself on oath and apart from it has examined two defence witnesses, one is his mother and other is Zubair Ahmed Ghouri. The defence taken by the present Appellant is that he was arrested from his house; this version finds support from the evidence of his mother that not only he was arrested from his house, but the police had also demanded illegal gratification for his release. As mentioned earlier the Complainant of this FIR has already been dismissed from his services on the charges of corruption and misconduct. Therefore, implication of present Appellant in this case becomes highly doubtful.
16. The perusal of FSL report also goes to show that two 30 bore empties, which were sent in connection with FIRs Nos,163/2016 and 164/2016 were not matched with the pistol allegedly recovered from the present Appellant.
17. It is cardinal principle of criminal jurisprudence that benefit of any doubt arising out of the circumstances of the case should be extended to the accused as of right and not as a concession.
18. In the light of above discussion, I am of the view that prosecution has failed to prove the charge against the present Appellant beyond the shadow of reasonable doubt, therefore, present Appellant is acquitted of the charge while giving benefit of doubt. Consequently, present Appeal is allowed and the judgment of the trial Court is set aside. The Appellant be released forthwith if not required in any other criminal case.